Consenting Under Stress

60 Pages Posted: 27 Feb 2012 Last revised: 5 May 2015

Hila Keren

Southwestern Law School

Date Written: February 27, 2012

Abstract

This article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from harmful contracts, on the grounds that they consented under stress. The article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress, in order to counter that misguided legal presumption and to offer a better understanding of the physical, social and psychological dimensions of stress.

Exploring both scientifically accepted causes of stress (stressors) and its known outcomes, the article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. It argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. The article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent.

Keywords: contracts, duress, stress, science

Suggested Citation

Keren, Hila, Consenting Under Stress (February 27, 2012). Hastings Law Journal, Vol. 64, No. 3, 2013. Available at SSRN: https://ssrn.com/abstract=2012013 or http://dx.doi.org/10.2139/ssrn.2012013

Hila Keren (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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