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UNDUE INFLUENCE, DURESS AND UNCONSCIONABILITY Undue Influence is a mental domination that one party has over another to the extent that the weaker party is robber of his/her free will went entering a contract. In the Buckwold case it was found that the plaintiff was not a victim of undue influence because she had the contract in her possession for some time before signing it. In that time the court said that she could have actually read it and consulted a lawyer who could have explained the terms to her. The only "pressure" she felt in this case was "standard commercial pressure" and not undue influence as she was not robbed of her free will. In some cases undue influence is presumed to exist and then the burden shift to the stronger party to prove there was NO undue influence! The relationships that fall into this category are doctor/patient, lawyer/client, financial advisor/client, principal/agent (realtors and brokers etc), trustee/beneficiary and religious advisor/ members of the
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Unformatted text preview: congregation. YOU will be in one of these categories! To avoid the presumption you must slow the process down -send the parties home with a copy of the contract and suggest that they seek independent advice before they sign. Duress is a physical domination by one party over another to the extent that he/she is robbed of his/her free will when entering a contract. This would include the threat of physical violence or imprisonment against the weaker party or a close family member of the weaker party. Unconscionability starts out with undue influence but here the stronger party abuses that position of power and preys on the weaker party to sign a contract. The second aspect of unconscionability is that the contract signed is grossly unfair to the weaker party. (With undue influence the contract entered into is likely "fair" it's just that the weaker party was robbed of his/her free will in signing it)...
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  • Spring '10
  • elaine
  • Contract Law, Sign, Undue influence, Buckwold

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