Duress & undue influence

Question 1

What is duress?

Answer 1

The compulsion of a manifestation of assent by force or threat. Assent is not manifested by free will.

Question 2

Are Ks made under duress void or voidable?

Answer 2

voidable

Question 3

Does duress need to be imminent?

Answer 3

no

Question 4

Duress under the common law

Answer 4

Limited to situations w/ actual violence or false imprisonment, harm hust have resulted in death or maiming, and the harm couldn’t be mere economic harm

Question 5

What are the elements of duress?

Answer 5

An improper threat that results in the offeree having no reasonable alternative than to sign.

Question 6

What is an improper threat for duress?

Answer 6

§ An act that is a crime or tort
§ The threat of criminal prosecution
§ A bad faith use of civil processes
§ Breach of good faith & fair dealing under a K
Exchange not on fair terms, that harms the recipient w/o benefiting party making threat.

Question 7

What is undue infulence

Answer 7

When someone breaches a duty through unfair persuasion or pressure that applies when there is self-dealing between people with a close relationship.

Question 8

What is a feduciary relationship?

Answer 8

a special subset of a special relationship that pertains to a financial relationship.

Question 9

Are Ks entered into w/ undue influence void or voidable?

Answer 9

Voidable

Question 10

What are the remedies for Ks entered into through undue influence

Answer 10

usually recission or restitution for any ill-gotten gains

Question 11

When is a contract unconscionable?

Answer 11

transactions that are so offensive that they shock the conscious of the court

Question 12

When is unconscionability tested?

Answer 12

At the time the contract is entered

Question 13

What are the remedies for an unconscionable contract?

Answer 13

If a court as a matter of law finds the K or any clause in the K to have been unconscionable at the time it was made the court may resort to:
○ Avoidance: refusing to enforce the K (void the K)
○ Severance: enforce the K but remove the unconscionable term
○ Amendment: Limit the application of the unconscionable term so as to avoid the unconscionable result

Question 14

What are the two types of unconscionability?

Answer 14

Procedural and substantive, There are no typical elements for this but both are required at some level for a contract to be found unconscionable.

Question 15

What is procedural unconscionability?

Answer 15

Something wrong w/ how the K was bargained. unfair bargaining tactics or abuse of bargaining power

Question 16

What is Substantive unconscionability?

Answer 16

The terms themselves and whether they are unfair. Unfair or unduly one-sided contract terms.

Question 17

What other things do courts look for when deciding unconscionability?

Answer 17

○ Absence of a meaningful choice & K terms unreasonably favoring other party
○ Oppression & unfair surprise: terms that are typically unexpected
○ Terms that are not reasonably understood or expected
○ Contracts of adhesion: a K imposed by one party on another on a take-it-or leave-it basis when one party has way more bargaining power than the other.

These factors do not make a K unconscionable but they signal unconscionability