Chapter 7 Genuineness of Assent

General Assent and Duress Lesson 7-1 General Assent and Duress

Genuine Agreement and Rescission Genuine agreement (general assent or mutual assent)-agreement to enter into a contract that is evidenced by words or conduct between the parties. May be missing due to fraud, misrepresentation, undue influence, duress, or mistake Absence of general agreement makes a contract voidable (injured party can rescind)

Rescind –backing out of the contract… Rescind –backing out of the contract….both give back what they had received. Rescission must be prompt and occur before contract is ratified Ratification-conduct suggesting you intend to be bound by the contract.

Duress Duress-occurs when one party uses an improper threat or act to obtain an expression of agreement. Threats of illegal conduct-committing an act of violence, threatening a crime, committing or threatening a tort. May be to life, liberty, or property and directed towards victim, their immediate family or near relatives.

Threat to report crimes-to coerce the criminal to contract with you (extortion) Threat to sue-when threat to sue is made for a purpose unrelated to suit Economic threat-When parties are bound by a contract and attempt to modify it. May try to use economic power they have over another to negotiate a favorable modification or settlement

Courts look at both the threat and alternatives available.

What is undue influence? Undue influence-occurs when one party is in a position of trust and wrongfully dominates the other party Key elements: the relationship and the wrongful or unfair persuasion Relationship of trust, confidence or authority Examples: attorney and client, husband and wife, parent and child, doctor and patient, minister and congregation member (but need not be a formal relationship_

Unfair persuasion- best evidence is the terms If terms are fair to both parties, then no unfair persuasion Persuasion or nagging are not necessarily unfair persuasion