Prior Posts – Duress and Undue Influence


Hello professor, in listening to one of your videotaped classes, I heard you say that it was "ok" to threaten to hurt a businessperson’s reputation, yet it was not "ok" to offer an obviously low settlement, where the latter would constitute "duress." I cross-referenced that with your discussion posting that explains a similar question posed by a former student. You reply to his question with:

"It is not true (according to the Restatement) that simply because one is doing that which one has a right to do (acting within one’s legal rights)that one’s actions can’t constitute duress. (see debate on this point in the case that we read). Exercising free speech is not sufficient not to make it duress according to the Restatement."

I would interpret ruining someone’s reputation as "abusive" and possibly "oppressive" to their future business dealings (with others).


It all depends on the circumstances.  In most commercial settings, threatening to spread the word about another party’s willingness to breach contracts and performance breaches is not a breach of duty of good faith and fair dealing under a contract.  On the other hand, threatening to exercise one’s free speech rights to publicize the private sexual affairs of a contracting partner from whom one seeks an advantage may be a breach.

There is good reason not to discourage the creation and maintenance of reputational sanctions, but there is good reason  to discourage threatened invasions of personal (non-business) privacy in contracting.

Undue Influence

I was reading through my notes on duress and undue influence and was wondering what was the difference between the Mitchell and Odorizzi cases. Is it that in Mitchell was obtaining (although indirectly) an economic benefit while the Superintendent in Odorizzi (or the county) was not gaining anything?

Employers do not owe fiduciary obligations to employees.  In Odoroizzi it was found that the employee was under the domination of the persuaders.  Not found in Mitchell.  Why?  Normally, employees(and individuals generally) may be dependent on others, but are not found to be under others’ domination.  Odorizzi is an exceptional case.

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