12. The limits of hard bargaining

Abstract

This chapter examines how English law sets limits to hard bargaining through the application of the doctrines of duress and undue influence. It first considers the problem of coercion in contractual transactions and how the doctrine of duress deals with coercion through the use of threats. It then discusses three key elements of duress: the impact of the pressure on the person who was subject to it, the need to prove illegitimacy, and the pressure must induce the decision to contract. It also describes remedies for duress and proceeds with an analysis of the scope and nature of undue influence, the elements of actual undue influence, presumed undue influence, remedies for undue influence, and specific issues that arise in relation to undue influence where third parties are involved. The chapter concludes with an overview of the regulation of aggressive practices.