Legal Definitions - unfair persuasion

Unfair persuasion refers to a situation where one person, often in a position of power or trust, uses subtle but manipulative tactics to convince another person to make a decision that significantly benefits the persuader, while seriously compromising the other person's ability to make a free and sound judgment.

It is a specific type of undue influence, meaning it involves improper pressure that overcomes someone's free will. However, it differs from more overt forms of pressure like duress (where someone is forced by threats) or misrepresentation (where someone is deceived by lies). Instead, unfair persuasion focuses on exploiting a person's vulnerability, isolation, or dependence to subtly sway their decision-making.

Key factors often considered when determining if unfair persuasion has occurred include:

• The susceptibility of the person being persuaded (e.g., due to age, illness, emotional distress, inexperience, or dependence).
• The unavailability of independent advice, meaning the persuaded person lacked access to neutral counsel from a lawyer, financial advisor, or trusted friend.

Here are some examples illustrating unfair persuasion:

• Example 1: Exploiting Grief and Isolation

  An elderly widow, recently bereaved and living alone, becomes heavily reliant on her new live-in housekeeper for companionship and daily needs. The housekeeper, over several months, subtly suggests that the widow's distant relatives are only interested in her money and repeatedly emphasizes her own loyalty and sacrifices. The housekeeper then presents a document for the widow to sign, which significantly alters her will to leave a substantial portion of her estate to the housekeeper. The widow, feeling lonely, emotionally vulnerable, and without anyone else to consult, signs the document without fully understanding its implications or considering her original intentions.

  This illustrates unfair persuasion because: The widow's susceptibility (grief, isolation, dependence) is exploited by the housekeeper's emotional manipulation. The lack of independent advice (no one to discuss the will with) further impairs the widow's free and competent judgment, leading her to make a decision that primarily benefits the housekeeper.

• Example 2: Pressuring an Inexperienced Entrepreneur

  A young, first-time entrepreneur, desperate for funding to launch an innovative tech startup, approaches an experienced venture capitalist. The venture capitalist, recognizing the entrepreneur's inexperience and urgent need for cash, offers a complex investment agreement that is heavily skewed in the investor's favor. The investor pressures the entrepreneur to sign immediately, stating it's a "take it or leave it" offer that won't last, and discourages the entrepreneur from seeking legal counsel by claiming it would "complicate things" and "jeopardize the deal." Feeling overwhelmed and fearing the loss of the opportunity, the entrepreneur signs the disadvantageous contract without proper review.

  This illustrates unfair persuasion because: The entrepreneur's susceptibility (inexperience, desperation) is leveraged by the investor. The investor actively discourages independent legal advice, impairing the entrepreneur's ability to make a well-informed and free decision regarding a critical business agreement.

• Example 3: Emotional Manipulation within a Family

  A young adult, recently recovered from a serious illness and still living at home, is financially and emotionally dependent on their parents. The parents, wanting to start a risky new business venture, repeatedly urge their child to co-sign a high-interest loan, despite the child having no understanding of business finance and a limited income. They use emotional appeals, saying things like, "If you truly loved us, you'd help us achieve our dream," and dismiss the child's concerns by stating, "It's just a formality, you won't really be responsible." Feeling obligated and unable to resist their parents' emotional pressure, the child co-signs the loan, putting their own future financial stability at significant risk.

  This illustrates unfair persuasion because: The child's susceptibility (recent illness, financial and emotional dependence) is exploited through emotional manipulation. The parents' dismissal of concerns and discouragement of independent financial advice prevent the child from exercising free and competent judgment regarding a major financial commitment.