The "duty" here is to use superior bargaining power reasonably in a bargaining situation.
This is like the Restatement §176-176, except for the tort flavor here.
This is considered to be unreasonable because the owner is exploiting the timing: the closing date has to be now... if the buyer sues for specific performance, by the time that's taken care of, the buyer will be financially ruined.
Note that this amounts to somewhat of a rejection of efficient breach (although the seller is skipping the step where he splits the befenit of the new contract with the buyer). Of course, the world doesn't work exactly this way.
So all the court has to say is the necessary minimum to decide the case, and the rest is dicta. So we have an essay on duress, which is supposed to signal what they'd do if the case came before the Supreme Court.
So there's a comment that this is based on a student comment. But there's no additional material to suggest that this is a bad idea. Instead, they refer the lower court to Williston on remand (Williston is the opposite of the IA comment: Williston is the one who's into "overcoming free will").
So, then what is the law of duress in WI? It's not "merely driving a hard bargain" (meaning, sadly, that you can't put Payday Loans out of business, since that's their whole operation). Note that the word "merely" is a signal that something else is required: what is the thing, in addition to a hard bargain, that makes a deal duress?
How do we cause duress-flavor fear in someone without an overt criminal act? How extreme does a situation have to be?
Threats to do what the threatening person has the legal right to do will not constitute duress. But then we see cases where this is considered the use of power for illegitimate ends: selling to undesirables, threats to fire employees at will, etc.
Pre-existing duties vs re-forming deals.
Quickly dismiss Williston: the fundamental issue in a duress case is not the victim's state of mind, but whether the statement that influenced the deal is the kind of thing we want to discourage, and therefore call a threat.
Posner (citing Alaska Packers) says you can't overturn a bargain because of your position. That would be duress: we have to defend contracts to make them useful.
A guy gets caught in some sort of gay-bust nonsense. The next day he signs a resignation. Then the charges are dismissed, and he files a suit asking for his job back.
It was actually the defendants' legal duty to dismiss him, so there is no duress. There's no fraud, either. But the appeals court does find that there was undue influence: overcoming the will without convincing the judgment.
Does the language describing undue influence in this case actually mean anything?
This is headed for settlement: there's no way he'll be back teaching.
Notice all the language about changing minds, etc., is this a sexist thing?
Note that you need some kind of relationship to get undue influence.
Also, note that the burden of proving that a deal was fair is on the fiduciary.
So sisters, for example. Or the artist Vargas and Esquire. These are some sort of borderline cases. The drastic undervaluing of a farm, on the other hand, seems clear to the courts. See also Delorean v. Delorean (John and Christina): a few hours before the wedding, John shows up with a pre-nup. Note that he's a multi-millionaire, but she's also a well-to-do talk show hostess, and has been married before. She consults with a lawyer selected by John. The court enforces the agreement (NJ law: John would hold fiduciary obligations to Christina in the role of the husband-to-be, but this is CA, so she gets a nice life estate, etc.).
The court doesn't say that the seller must disclose facts that would influence the buyer's decision.
Old cases involved propane tanks. The seller has a duty to inform the buyer if one is leaking. There's a safety factor: the seller has the duty to notify about safety issues. Now, are termites a safety issue? They can be, over time, and the court stretches this safety doctrine to cover here. Still, it's a step beyond the exploding gas.
Note that warranty is different from the tort of misrepresentation. These are all WA cases, incidentally.
Anyway, notice how lucky the buyer was to have gotten the very same termite exterminator that the seller used. So they get good information about what the seller knew and decided (i.e., make cosmetic changes, but don't fully eradicate termites).
In a subsequent case, we see that it's not an absolute liability: it must be proven that the seller knew. WI has the notion of negligent misrepresentation (asserting something that you don't know: i.e., I don't know whether there are termites, but I tell you that there are not).
So we keep giving little rights, but add disclaimers and exceptions.
Then later the court says that builders provide an implied warranty to buyers (i.e., that the house is on a solid foundation). What about house fixer-upper people? Do they need to offer a warranty?
Private government is very important here: you get these disclaimer checklists.
Lessee fails to remind lessor of contracts of the terms.
Even after you've signed a contract, you're not obligated to become an altruist entirely, but you can't take deliberate advantage of your partner.
Before a signed deal, signatories are at arm's length, and are naturally wary. So if you don't realize the implications of our contract, and our contract is enforceable, it's bad faith for me to explout that point.
Once a deal is in place, we trust one another somewhat. The doctrine of good faith is the process of approximating what the parties would have negotiated had they foreseen the circumstances precipitating their dispute.
Normally we don't excuse contracting parties for failing to read and understand the terms of their contracts, but we want to uphold the doctrine of good faith, and we suspect they would have forbidden this transaction if they had foreseen it.
Posner says they need a trial to find out if the lessor was tricking. And, on remand, sure enough: it is found that they were.
Note that this can be persuasive authority in WI, but it is not binding. WI often slams the 7th Circuit. This is an intermediate appellate court, so the WI supremes are free to disregard it. Also WI supremes have discretion about what they'll hear: there's no guarantee they'll ever rule on this exact point.
Note that to state a cause of action, he has to state a lot of facts about his client that she probably wouldn't take too kindly.
The contract was procured by undue influence and tactics that went well beyond the bounds of reasonable sales puffing.
Now, normally, misrepresentation requires a misstatement of fact, not of opinion. So what is the deal with this?
The court finds a fiduciary-type relationship here: the instructor is not an arms-length salesperson. Partly, this is because he's holding himself out to be an expert. But also a teacher: that's a role (like doctor or minister) that could come with responsibilities. You have some right to rely on your teacher's guidance.
The court says he didn't have to offer opinions, but if he did, it's reasonable for to think he'd offer truthful ones.
So this isn't really duress; it's sort of undue influence. The teacher is taking advantage of the student's weakness. But is Mrs. Vokes really weaker than the rest of us? Is she relying on her "oldness" (51!) to bring this suit. Some consider defenses based on duress or undue influence to be undignified: basically you're saying you're incompetent to make your own deals, and you need someone else to take care of your arrangements.
Is there a hidden moral judgment here about dancing? That it's frivolous, or sinful?
But this is Islay. Strongly anti-Thatcher (they're all living on subsidies).
They tried to run the boat full speed ahead to run it aground after the new officer had hit some rocks, in order to salvage some stuff. Didn't make it. Lots of sheep and cars at the bottom of the ocean.
Here we have sort of an illusion of a contract: it looks like a contract, but it's "not meant to be read, still less to be understood." There's no practical way for someone to read and understand it. It's just an empty symbol: contract magic (you signed it, and I gotcha!). None of these terms are up for negotiation.
Why should this be enforced if it gets signed? On the other hand, why do we have a law of negligence, if you can just magically disclaim it and be as negligent as you want? And on the third hand, why not help out all the other people who lost their property in this mess?
The symbolism of contracts is important, but at the same time it's unreasonable to expect that everyone can read and understand all the terms they encounter. The notion that this rests on an objective theory is shaky.
Efficiency is a consideration here too: it's not necessarily good, but it's cheap. Still, surprising that going through some mindless ceremony can get you out of all negligence losses. We all have to live on some level of trust: we can't spend all day negotiating the fine print of every last little thing.
The trial court says the plaintiffs waived their rights in the form contract, and they don't even get to press the suit.
But then a unanimous supreme court reverses. This was tried in class by the lawyers who argued before the court in 1996, and the opinion came down during the final. Most of the class thought the ski park would win.
Exculpatory clauses are not favored because they tend to allow negligent conduct.
A waiver must clearly, unambiguously, and unmistakeably inform the signer of what is being waived. The form, looked at in its entirity, must alert the signer as to the nature of the agreement. And this will be reviewed on the basis of public policy, not contract law. In other words, we want to be sure that people are alert enough to buy insurance if warranted, and we want to avoid granting a license to be negligent.
The court doesn't address the question of whether or not this is a thing that can be bargained about.
Supplemental question: how can the father's signing take away the rights of the daughter? Or the mother? <--- AGENCY (this gets covered in another course) :)
Anyway, not all contracts would be subject to this: negligence qualifies for scrutiny on the basis of public policy. We don't want ski resorts to lower their standards on the basis of form contracts disclaiming liability.
Now suppose all the risks were fully explained. Would this make a difference (i.e., would this stop people from wanting to go skiing)?
This case doesn't say, "you can get rid of liability if you do XYZ." It just says "this doesn't get rid of liability because it's not clear, reasonable, etc." This is a negotiation between the supreme court and insurance companies. Maybe you can limit your liability, in other words, and we're trying to work out the reasonable compromise.