RULE STATEMENTS

Fraudulent Misrepresentation

Fraudulent misrepresentation requires a material misrepresentation, knowing of its falsity, intending to induce the contract, and actual and justifiable reliance by the victim. A material misrepresentation is a false statement of material fact. Statement of opinion or puffery are not actionable.

DURESS - COMMON LAW

Under the common law, modification to a contract generally requires new consideration. However, under the supervening difficulties exception, a modification is enforceable if (1) a substantial and unanticipated difficulty in the performance of one of the parties arose after the contract had been entered into; (2) the risk of that difficulty must not have been expressly or impliedly assumed in the contract by the party who suffers the burden and seeks the modification; (3) the difficulty must not have resulted from that party’s error, oversight, or misjudgment; (4) the other party’s agreement to the modification must be genuine and the modification must be fair and equitable in light of the unanticipated difficulty; and (5) the party seeking the modification must have dealt honestly and fairly in requesting it, and must not be trying to take advantage of the necessities of the other in coercing the modification.

DURESS - UCC

A contract is voidable for duress when a party’s assent is induced by an improper threat that leaves the victim no reasonable alternative but to agree. An improper threat may include a threat to breach a contract in bad faith or to take advantage of the victim’s economic vulnerability.

UNCONSCIONABILITY

A court may refuse to enforce a contract that is unconscionable, considering both procedural unconscionability (lack of meaningful choice, unfair bargaining process) and substantive unconscionability (unreasonably harsh or one-sided terms).