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Chapter 7 Genuineness of Assent. 7-1 Duress and Undue Influence 7-2 Mistake, Misrepresentation, and Fraud. 7-1 Duress and Undue Influence. GOALS Recognize when genuine assent is not present Identify the two key elements in undue influence. GENUINE ASSENT AND DURESS.

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chapter 7 genuineness of assent

Chapter 7Genuineness of Assent

7-1 Duress and Undue Influence

7-2 Mistake, Misrepresentation, and Fraud

Chapter 7

7 1 duress and undue influence
7-1 Duress and Undue Influence

GOALS

  • Recognize when genuine assent is not present
  • Identify the two key elements in undue influence

Chapter 7

genuine assent and duress
GENUINE ASSENT AND DURESS
  • Due to a variety of causes, genuine assent (true and complete agreement) is at times shown to be lacking in court.
    • Without genuine assent a contract is typically voidable. This means that, if the injured party desires, that party can cancel the contractual obligation.
    • The party then has the legal right to get back what has already been put into the contract. This action is referred to rescission.

Chapter 7

genuine assent and duress1
GENUINE ASSENT AND DURESS
  • Genuine assent (cont.)
    • To be effective, an avoidance must be prompt. It must occur shortly after discovering there is no genuine agreement
    • Avoidance must occur before the contract is ratified. Ratification is conduct that confirms one intends to be bound by the contract.

Chapter 7

genuine assent and duress2
GENUINE ASSENT AND DURESS
  • Duress – The law only allows a contract to be undone because of apprehension and pressure in a few instances. Actionable or legal duress only occurs when one party uses an improper threat to act or obtain an expression of agreement. The resulting contract is voidable. Much of the law of duress focuses on the nature of the threat.

Chapter 7

genuine assent and duress3
GENUINE ASSENT AND DURESS
  • Duress (cont.)
    • Threats of illegal or tortious conduct – The threat to engage in illegal or tortious conduct, such as a crime or tort, to win agreement is always duress. The threat may be to the physical life, liberty, or property of the victim.
    • Threats to report crimes – If one uses the threat of reporting a crime to force the criminal to contract, this is duress and may be the crime of extortion.

Chapter 7

genuine assent and duress4
GENUINE ASSENT AND DURESS
  • Duress (cont.)
    • Threats to sue – When the threat to sue is made for purpose unrelated to the suit, this may be duress and the resulting contract may be voidable.
    • Economic threats – Parties may be tempted to use the economic power they have over one another to negotiate a favorable modification or settlement. The courts look at both the threat and the alternatives available to the threatened party. It is duress if the threatened party had no other choices but to enter into or modify the contract.

Chapter 7

undue influence and assent
UNDUE INFLUENCE AND ASSENT

Undue influence occurs when one party to the contract is in a position of trust and wrongfully dominates the other party. The dominated person then does not exercise free will in accepting the contractual terms. The two key elements in undue influence are the relationship and the wrongful or unfair persuasion. When a contract arises because of undue influence, it is voidable by the victim.

Chapter 7

undue influence and assent1
UNDUE INFLUENCE AND ASSENT
  • The relationship – A relationship of trust, confidence, or authority must exist between the parties to the contract. Examples include attorney/client, husband/wife, physician/ patient.
  • Unfair persuasion – Often the best evidence of unfair persuasion is found in the terms of the contract.

Chapter 7

undue influence and assent2
UNDUE INFLUENCE AND ASSENT

To prevent a claim of undue influence, the stronger party should act with total honesty, fully disclose all important facts, and insist that the weaker party obtain independent counsel before contracting.

Chapter 7

7 2 mistake misrepresentation and fraud
7-2 Mistake, Misrepresentation, and Fraud

GOALS

  • Recognize the types of mistakes that can make a contract voidable or void
  • List the criteria for a statement to be treated as a misrepresentation
  • Define fraud and describe the remedies for it

Chapter 7

what are the types of contractual mistakes
WHAT ARE THE TYPES OF CONTRACTUAL MISTAKES?
  • Unilateral mistakes – A unilateral mistake occurs when only one party holds an incorrect belief about the facts or law related to a contract. Generally, this does not affect the validity of the contract. Common unilateral mistakes include:
    • Failure to read a contract before signing
    • Hurried or careless reading of a contract
    • Signing a contract in a language one does not understand

Chapter 7

what are the types of contractual mistakes1
WHAT ARE THE TYPES OF CONTRACTUAL MISTAKES?
  • Mutual mistakes – When there is a mutual mistake (also called a bilateral mistake) both parties have an incorrect belief about an important fact or the applicable law. Important facts that influence the parties’ decisions about a contract are called material facts.

Chapter 7

what are the types of contractual mistakes2
WHAT ARE THE TYPES OF CONTRACTUAL MISTAKES?
  • Mutual mistakes (cont.)
    • If a mutual mistake of fact occurs, the contract is void (without legal effect).
    • When the mutual mistake is about the applicable law, the contract is still valid.

Chapter 7

what is misrepresentation
WHAT IS MISREPRESENTATION?

In many contract negotiations, the parties make statements that turn out to be untrue. This is an innocent misrepresentation. If a party knowingly makes an untrue statement, the party has engaged in fraudulent misrepresentation. In both of these situations, the contract that results is voidable by the party to whom the misrepresentation is made.

Chapter 7

what is misrepresentation1
WHAT IS MISREPRESENTATION?

Statements are treated as misrepresentations by the law only if:

  • The untrue statement is one of fact or there is active concealment
  • The statement is material to the transaction or is fraudulent
  • The victim reasonably relied on the statement

Chapter 7

what is misrepresentation2
WHAT IS MISREPRESENTATION?
  • Untrue statement of fact – In misrepresenta-tion, the statement must be one of fact rather than opinion. Therefore, the statement must be about a past or existing fact. Opinions also can be distinguished from facts based on how concrete they are.
    • When an expert expresses an opinion, the law will treat the statement as a statement of fact which can be the basis for misrepresentation.

Chapter 7

what is misrepresentation3
WHAT IS MISREPRESENTATION?
  • Untrue statement of fact (cont.)
    • Active concealment – Active concealment is a substitute for a false statement.
    • Silence – While in many situations the seller may remain silent about defects, there are three important situations where disclosure is required:
      • A statement about a material fact omits important information (half truths).
      • A true statement is made false by subsequent events.
      • One party knows the other party has made a basic mistaken assumption.

Chapter 7

what is misrepresentation4
WHAT IS MISREPRESENTATION?
  • Materiality – There are three ways an untrue statement can be determined to be material:
    • The statement would cause a reasonable person to contract.
    • The defendant knew this plaintiff would rely on the statement.
    • If the defendant knew the statement was false, this makes the statement material.

Chapter 7

what is misrepresentation5
WHAT IS MISREPRESENTATION?
  • Reasonable reliance – Even though the statement is material, there is no misrepresentation unless the victim reasonable relied on it.

Chapter 7

fraud and remedies for fraud
FRAUD AND REMEDIES FOR FRAUD

Fraud is based on misrepresentation. All the elements of misrepresentation must be proven to show fraud plus two additional elements: intent and injury.

  • The misrepresentation must be intentional or reckless
    • Person deliberately lies or conceals a material fact

Chapter 7

fraud and remedies for fraud1
FRAUD AND REMEDIES FOR FRAUD
  • The misrepresentation must be intentional or reckless (cont.)
    • Person recklessly makes a false statement of fact without knowing whether it is true or false.
    • Misrepresentation must be intended to induce the victim to contract.

Chapter 7

fraud and remedies for fraud2
FRAUD AND REMEDIES FOR FRAUD
  • The misrepresentation or concealment must injure – To establish fraud, there must be proof of injury. If there is an intentional misrepresentation, but no injuries, there is no liability for fraud.

Chapter 7

remedies for fraud
REMEDIES FOR FRAUD
  • Rescission – Contracts entered into as a result of misrepresentation or fraud are voidable by the injured party and can be rescinded. Normally when one rescinds, anything received must be returned.
    • A deceived party who has performed part of the contract may recover what has been paid or given.
    • A deceived party who has done nothing may cancel the contract with no further obligation.

Chapter 7

remedies for fraud1
REMEDIES FOR FRAUD
  • Damages – Damages are available if fraud is proven. Should a defrauded party nonetheless choose to ratify the contract, the defrauded party may seek damages for loss created by the fraud.
    • Under UCC, damages are available when there is only an innocent misrepresentation in a sale of goods.

Chapter 7

remedies for fraud2
REMEDIES FOR FRAUD
  • Punitive damages – Punitive damages are also available as a way to punish the party who committed fraud.

Chapter 7

prevent legal difficulties
PREVENT LEGAL DIFFICULTIES

In making contracts . . .

  • Research important transactions before entering into them. Verify claims of the seller by outside means or through firsthand personal experience.
  • Do not rush into a decision. Take time to review and understand the advantages and disadvantages of the proposed contract. Legitimate proposals will usually survive a delay.

Continued on the next slide

Chapter 7

prevent legal difficulties1
PREVENT LEGAL DIFFICULTIES
  • Do not hesitate to ask questions about vague or uncovered issues. Forcing the other party to make statements about them may lay the groundwork for proving fraud or misrepresentation later.
  • If the other party does not properly answer your questions, proceed with great caution or abandon the negotiations.
  • If you believe you have been defrauded, act promptly to rescind the contract.

Chapter 7