ABSTRACT
This Article examines the regulation of contracts formed under coercive conditions, focusing on cases in which consent is formally voluntary but substantively constrained by duress, necessity, or dependence. It argues that doctrines traditionally justified in terms of fairness or protection of the weaker party are best understood, and more coherently interpreted, through the lens of economic efficiency. The analysis develops a taxonomy of coerced consent, distinguishing between situations in which a party’s state of need is deliberately engineered through threats or opportunistic conduct and situations in which necessity arises independently and is merely exploited. On this basis, the Article offers a comparative examination of Italian, French, German, and US law, showing a significant convergence toward remedies that either limit enforceability or allow judicial rebalancing when contractual terms are excessively disproportionate. Drawing on law and economics, the Article shows that invalidating contracts formed through engineered coercion eliminates incentives for socially wasteful behavior, while permitting – subject to regulation – contracts concluded in states of necessity preserves efficient incentives for rescue and assistance. It further explains doctrines addressing abuse of dependence and contractual renegotiation as responses to the hold-up problem, aimed at protecting specific investments and enabling mutually beneficial exchanges. The central claim is that, in the field of coerced contractual consent, fairness and efficiency are not competing values but converge toward the same regulatory solutions. Recognizing this convergence provides a more principled and predictable framework for interpreting positive law across jurisdictions.
Baffi, Enrico, The Regulation of Contracts Entered under Coercion: Positive Law in the Light of Efficiency and Fairness (December 31, 2025).
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