Hastings Law Journal

Article Title

Consenting Under Stress


Hila Keren


This Article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from contractual obligations on the grounds that they consented under stress. The Article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress in order to counter that misguided legal presumption and to offer a better understanding of the physical, social, and psychological dimensions of stress. Exploring both the scientifically accepted causes of stress (stressors) and the known outcomes that result from stress, this Article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. This Article argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. This Article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent.

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