Duress and undue influence
Table of Contents
- Introduction
- The theory of duress at common law
- The scope of duress
- Economic duress
- Effects and remedies
- Undue influence and equity
- The scope of undue influence
- Actual undue influence
- Namely presumed undue influence
- Effects and remedies: Influence and equity
- A voidable contract
- A right to rescind
- Bars to rescission
- Conclusion
- Bibliography
Summary"It is assumed that the parties know their own minds, that they are the best judges of their own needs and circumstances, that they will calculate the risks and future contingencies that are relevant, and that all these enter into the bargain. It follows that unfairness of the bargain - gross inadequacy or excess of price - is irrelevant, and that once made, the contract is binding." This harsh quotation of Atiyah reveals the severity and the power given to contractual agreements by the English law. The English system through its particular tools of creation of the law created two theories softening the rule set by the contractual agreement. Indeed the consent of a contracting party may have been obtained by some form of pressure, which the law regards as improper. The victim of such pressure may be entitled to relief under the common law of duress, and under the equitable rules of undue influence. Treating this issue is a choice that can appear particularly relevant providing the specificity of the concerned concepts and the necessity to point out the differences of the common law and the equity as regards to the French legal system.
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