Contractual Duress and Relations of Power
Sapir Academic College - School of Law; Ben-Gurion University of the Negev; Bar-Ilan University - Interdisciplinary Department of Social Studies; Columbia Law School
August 1, 2012
Harvard Journal of Law and Gender, Vol. 36, 2013
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.
Number of Pages in PDF File: 52
Date posted: August 23, 2012 ; Last revised: May 25, 2013