Prior Posts – Duress and Undue Influence
Duress
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1. Do the factors in Mitchell including economic disparity and unequal footing apply outside the context of third party coercion or should we only consider them when there is a third party which received the benefit? — Not all the cases that you in law school are correctly decided. This section is on searching for a standard for duress. Mitchell is one judge in one case enunciating a standard that is (IMHO) hopelessly overbroad. The point is to show you that “economic disparity” and “unequal footing” can’t be the standard for duress in our society as it now stands Maybe your vision of justice leads you to imagine a society lacking economic disparities of all sorts. IMHO, the canon law’s use of just price is more workable than undoing all contracts because of inequality between the parties. Note that the UCC (in 3-302) and R2 reject the standard n Mitchell.
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1. What do you mean by saying the 3rd element usually drops out of the R 175 duress analysis? That courts usually do not consider it? — Yes
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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).
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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.