Walking the Divide: A Critical Examination of the Nature of Undue Influence and Unconscionable Dealing

Abstract

This article affords a contextual, exploitation-based account of the doctrines of undue influence and unconscionable dealing in the law of contract. In contrast with the vast majority of literature on undue influence and unconscionable dealing, this article argues that substantive unfairness is neither a necessary nor sufficient condition for establishing either doctrine. Rather, it is the stronger party’s exploitation of the weaker party’s position which is of importance when granting relief in equity. Notwithstanding the centrality of exploitation when making a finding of undue influence or unconscionable dealing, the law presently demarcates between the doctrines by reference to the contexts in which they operate. The conclusion is therefore that although conceptual coherence between both doctrines is welcome, any attempt at assimilation ought to be sensitive to the contexts which undue influence and unconscionable dealing currently regulate.

Keywords: Contract Law, Undue Influence, Unconscionable Dealing, Duress, Exploitation, Commercial Law, Jurisprudence