Essay - duress, undue influence and unconscionability PDF

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‘Since the doctrine of duress, undue influence and unconscionable bargains all deal with a common problem, it would be better if they were replaced by a single doctrine of improper pressure’. Discuss The aim of contract law is to provide freedom of contract in order to promote fairness and to enforce parties’ intentions, ensuring they are voluntary. Where this intention to create legal relations is limited by duress, undue influence and unconscionability, the law aims to protect the weaker party, particularly in this context in the procedure fairness. Consent and voluntary intention are the pinnacle of a contract, as without it, it is not enforceable for either party; another aim of contract law. Despite all doctrines dealing with procedural unfairness, the manner in which they are carried out differ greatly. The single doctrine would only create inconsistencies in the law, as the word ‘improper’ is too vague. Questions such as: what is deemed improper pressure; is any pressure in a contract improper – thus vitiating consent and are there enough similarities within the doctrines to be channelled into one ‘umbrella doctrine’? If pressure is described as improper, this doesn’t automatically determine it as illegitimate. In, mainly commercial, contracts, some pressure is deemed legitimate as it creates some incentive for the other party to act, but the Court of Appeal in CTN Cash and Carry v Gallaher stress that it would not be found lightly in a commercial context. In all doctrines, a weakness of the party is exploited – Burrows argues that any contract should be illegitimate if this is the case – this view, this widens the scope far too much and allows parties to deem contracts unenforceable. To some extent, all contracts exploit the weakness of a party e.g. consumer’s buying food because they are hungry, one business buying risky fluctuating shares from another due to urgency of meeting standards, but to which extent this is taken is what these doctrines legitimise and accept. These doctrines have the similar principle in prohibiting the limit of freedom, but the manner in which this is undertaken differs greatly. This essay will distinguish the scope of enforcement within each doctrine and why a single doctrine would dilute the purpose of each. Duress is the result of a person agreeing to a contract due to their person (Barton v Armstrong). More recently, courts have accepted economic duress as a form of threat to a person which may induce a party into a contract. The issue here is of vitiated consent, as the party is no longer free to consent if the pressure is illegitimate (Lord Wilberforce in Barton). As a matter of policy, duress aims to promote certainty and security whilst preventing opportunistic exploitation....