Undoing Undue Influence: How the Doctrine Can Avoid Judicial Subjectivity by Omitting the Vulnerability Element

Abstract

This article addresses the flaws of the doctrine of undue influence. When deciding contractual disputes, courts are concerned about the fairness of the transaction. One defense to the enforcement of a contract is the theory that undue influence was asserted. The problem with this defense is that subjectivity has crept into the decision-making process.

The article proposes that the doctrine of undue influence omit the traditional element of vulnerability when establishing a claim of undue influence. It argues that the utility of the doctrine has been declining for several decades. The article provides several contexts of contract formation in which inquiry into the mind of the one allegedly being influenced has proven problematic. After examining several legislative and theoretical models, Robin Boyle-Laisure proposes a new construct for assessing undue influence that eliminates the element of examining the state of mind (the vulnerability) of the one being influenced.

Keywords: Undue Influence, Judicial Subjectivity, Vulnerability element, high-control group, Excessive pressure, cults, Second generation adults, Multi-generation adults, First-generation Adult, critical thinking skills, brainwashing, England's Serious Crime Act, Scotland's Domestic Abuse Act, Federal Traffic