Undue Influence and Exploitation

Abstract

This chapter distinguishes two contexts in which promises might be made: in situations of ‘thick’ trust where the parties are in a pre-existing close or intimate relationship with one another, and cases of ‘thin’ trust where the relationship between the parties is more like that between what Lon Fuller called ‘friendly strangers’. Typically, contracts take place in the context of thin trust. However, ‘promise theorists’ have tended to lose sight of this distinction—assuming that contract must reflect the morality of promises that take place in close relationships. This chapter relies on this distinction to explain the undue influence doctrine, which applies in those much less common cases where contracts take place in the context of close relationships. Such cases create a risk of relational exploitation by the promisee, and this chapter argues that this normative concern plays an essential normative role in explaining the undue influence doctrine. The promise theory has tended to downplay the role of exploitation at the cost of explaining the doctrine. Undue influence is an example of what is described here as a ‘composite’ doctrine’, that is, it is the product of the interaction of a multiplicity of moral principles or values and cannot adequately be explained by a single value like promise alone.