Private Law Theory

ABSTRACT
Much of contract law concerns how to treat instances in which one party is vulnerable to advantage taking by another. The cases fall into two groups. In some the advantage-taker just happens upon the vulnerable party and has no part in creating that vulnerability. This has been labeled ‘pure advantage taking’. In other cases, specifically duress and undue influence, the advantage-taker is responsible to some degree for creating that vulnerability. This is ‘active advantage’ taking. In all cases, contract law takes a permissive approach by limiting the remedy to avoidance and restitution. This Essay argues that the permissive approach is inappropriate particularly in cases in which the vulnerability is created. Its position is that these are cases of cognitive trespass and should be treated as torts, thus leading to the availability of punitive damages. The analysis breaks with the tradition of viewing duress and undue influence through the lenses of free will, impairment of bargaining power or the fairness of the bargain. Instead it argues that illegitimate pressure alone is a harm that should be addressed regardless of the contractual outcome.

Harrison, Jeffrey Lynch, Duress and Undue Influence in Contract Law as Cognitive Trespass: An Essay (September 17, 2019).

First posted 2019-09-27 05:18:34