Contractual Duress and Relations of Power

52 Pages Posted: 23 Aug 2012 Last revised: 25 May 2013

Orit Gan

Sapir Academic College - School of Law; Ben-Gurion University of the Negev; Bar-Ilan University - Interdisciplinary Department of Social Studies; Columbia Law School

Date Written: August 1, 2012

Abstract

Consent is one of the pillars of contract law and the subject of much scholarly literature. At the same time, feminist scholarship concentrates on consent to sex and scarcely deals with contractual consent. This Article aims to bridge this scholarly gap. By focusing on duress doctrine in the context of relations of power, it uses feminist insights about consent to examine the liberal notion of consent to contract. The application of feminist scholarship regarding consent shows that duress doctrine is narrow and disregards context and power imbalances between parties. As a result, coercive contracts are enforced, to the economic detriment of aggrieved parties. This Article proposes the development of a broader, more complex duress doctrine that is sensitive to social inequality and context and that includes aggrieved parties’ experiences and perspectives.

Suggested Citation

Gan, Orit, Contractual Duress and Relations of Power (August 1, 2012). Harvard Journal of Law and Gender, Vol. 36, 2013. Available at SSRN: https://ssrn.com/abstract=2134630

Orit Gan (Contact Author)

Sapir Academic College - School of Law ( email )

Israel

Ben-Gurion University of the Negev ( email )

1 Ben-Gurion Blvd
Beer-Sheba 84105, 84105
Israel

Bar-Ilan University - Interdisciplinary Department of Social Studies ( email )

Ramat Gan, 52900
Israel

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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