Orit Gan, ‘Contractual Duress and Relations of Power’

Abstract:
Consent is one of the pillars of contract law and the subject of much scholarly literature. At the same time, feminist scholarship concentrates on consent to sex and scarcely deals with contractual consent. This Article aims at bridging this scholarly gap. Focusing on duress doctrine in the context of relations of power, it uses feminist insights about consent to examine the liberal notion of consent to contract. The application of feminist scholarship regarding consent shows that duress law is narrow and a-contextual and disregards power imbalances between parties. As a result, coercive contracts are enforced, to the economic detriment of aggrieved parties. This Article proposes the development of a broader, more complex duress law that is sensitive to social inequality and context and that includes aggrieved parties’ experiences and perspectives.

Gan, Orit, Contractual Duress and Relations of Power (August 1, 2012). Harvard Journal of Law and Gender, Vol. 36, 2013.

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