Issue of Contracting Position

Question 1

Duress

Answer 1

When someone’s circumstances are so structured that they have no bargaining power.

It’s not an issue of unfair but that the act is unlawful. Why should we take into fairness? There is so much unreasonable stuff.

If the person seeking to be excused form a contract, their duress must be caused by the defendant otherwise they can’t establish a cause for duress. it cannot constitute duress if the party is threatening nothing which he does not have a legal right to do.

To determine duress, you have to look at the reasonableness of the circumstances.

Question 2

Threat

Answer 2

A threat must be such as would overcome the will of a person of ordinary firmness-be of universal application or not, it undoubtedly furnishes a correct guide in cases in which there is nothing to show that the party who seeks to avoid the contract was not of ordinary courage and firmness.

Question 3

Coercion

Answer 3

Inverse: If a person, without fraud or coercion, pays a demand which is not enforceable against him, the payment is voluntary and cannot be recovered back

Converse: Coercion or duress, which will render a payment involuntary, must be such a constraint, actual or threatened, as overcomes the mind of the one who makes the payment.

Question 4

Duress caused by third-party

Question 5

Void v. Voidable

Answer 5

Difference between a VOID, not a contract and never existed, and a VOIDABLE contract is voidable by one contract.

Voidable contracts may be binding if one party is an innocent party and HAS performed.