You’re staring at a fact pattern where someone signed a contract they clearly didn’t want to sign. Maybe a creditor threatened to file criminal charges unless the debtor agreed to new payment terms. Maybe an elderly parent transferred property to their child after weeks of relentless pressure. Your gut says something’s wrong here, but can you articulate why the contract should be voidable?

Duress and undue influence are two distinct contract defenses that appear regularly on the MBE. They both involve improper pressure, but the legal standards are different, the fact patterns look different, and the bar examiners love testing whether you can spot which defense applies. Let’s break down exactly what you need to know to identify and apply these defenses when a contract was formed under questionable circumstances.

What Makes Duress Different from Undue Influence

Both defenses involve one party pressuring another into a contract, but the type of pressure matters. Duress involves an improper threat that leaves the victim with no reasonable alternative. The focus is on external coercion — someone threatened harm unless you signed. Undue influence involves unfair persuasion by someone in a position of trust or authority who overcomes the victim’s free will. The focus is on the relationship between the parties and the abuse of that relationship.

Think of duress as a gun to your head (literally or figuratively). Think of undue influence as a trusted advisor slowly manipulating you into doing what they want.

The MBE tests both, but undue influence questions often involve family relationships, fiduciary duties, or professional relationships where one party has special influence over the other. Duress questions typically involve threats — either physical threats, threats of criminal prosecution, or economic threats that leave someone with no realistic choice.

A contract is voidable for duress when assent was induced by an improper threat that left the victim with no reasonable alternative. Notice both elements must be present. A threat alone isn’t enough if the victim had other options. And pressure alone isn’t duress unless it crosses the line into an improper threat.

What counts as an improper threat? Physical violence obviously qualifies, but you won’t see many MBE questions about signing a contract at gunpoint. The bar examiners prefer subtler scenarios. Threats of criminal prosecution are classic duress. If a creditor threatens to have you arrested unless you sign a new promissory note, that’s duress even if you actually did commit a crime. The criminal justice system isn’t supposed to be used as leverage in private disputes.

Bad-faith threats of civil litigation can also constitute duress, though this is trickier. Threatening to sue someone isn’t automatically improper — people have a right to access the courts. But if the threatened lawsuit is baseless and made purely to extract concessions, it may rise to the level of duress.

The more commonly tested scenario is economic duress. This requires two things: First, the threat must seriously threaten the other party’s property or finances. Second, the victim must have no adequate means to prevent the loss.

Here’s a classic economic duress fact pattern: A contractor is halfway through building your house when they suddenly demand an extra $50,000 or they’ll walk off the job. You need the house finished in 30 days for a job relocation. No other contractor can complete the work in time. You pay the extra money under protest. That’s economic duress. The threat (abandoning the work) seriously threatened your finances, and you had no reasonable alternative — you couldn’t find another contractor in time, and a breach of contract lawsuit wouldn’t give you the completed house you needed immediately.

Contrast that with this scenario: A supplier tells you they’re raising prices by 20% next quarter, and you reluctantly agree because finding a new supplier would be inconvenient. That’s not duress. You have alternatives (find a new supplier, negotiate, stockpile inventory), even if they’re not ideal. Duress requires that you’re truly backed into a corner.

Undue Influence: When Trust Becomes Manipulation

Undue influence is voidable when one party uses a position of trust, confidence, or authority to overcome the other’s free will. This defense appears when someone with special influence over another person exploits that relationship to secure an unfair advantage.

The MBE tests two main scenarios. First, unfair persuasion of a party under the domination of the influencing party. Think of a caregiver who has isolated an elderly person and gradually convinces them to transfer their assets. The victim isn’t making an independent decision — they’re being controlled.

Second, unfair persuasion of a party who is justified in assuming the other will act in their interest. This covers fiduciary relationships: attorney-client, doctor-patient, trustee-beneficiary, guardian-ward. When someone occupies a position of trust and uses that position to secure a contract favorable to themselves, undue influence may apply.

The key word is unfair. Not all persuasion by a trusted person is undue influence. Your attorney can advise you to settle a case. Your financial advisor can recommend investments. Undue influence requires that the persuasion crossed the line into manipulation, often through persistent pressure, isolation from other advisors, or exploitation of the victim’s vulnerability.

Here’s what an undue influence fact pattern looks like: An elderly widow relies entirely on her nephew for financial advice and daily care. Over several months, the nephew repeatedly tells her that her other relatives are trying to steal her money and that she should transfer her house to him for “protection.” She’s isolated from other family members and eventually signs the deed over. That’s undue influence. The nephew occupied a position of trust, the widow was vulnerable and dependent on him, and he used persistent pressure to secure an unfair transaction.

Compare that to this: An elderly person’s child suggests that the parent sell their house and move into assisted living, and the parent agrees after discussing it with their attorney and other family members. No undue influence — the child offered advice, but the parent made an independent decision with access to other perspectives.

How to Spot These Defenses on the MBE

When you see a fact pattern involving a contract that someone wants to void, ask yourself these questions:

For duress: Was there a threat? What kind? Did the victim have any reasonable alternative? If someone signed because they faced physical harm, criminal prosecution threats, or economic ruin with no other options, think duress.

For undue influence: What was the relationship between the parties? Did one party occupy a position of trust or authority? Was the victim vulnerable, isolated, or dependent? Was there persistent pressure over time? If the pressure came from someone the victim trusted and relied on, think undue influence.

The bar examiners love testing the boundaries. They’ll give you a parent who pressures their adult child into a contract — is that undue influence or just normal family dynamics? They’ll give you a business negotiation where one party has more leverage — is that economic duress or just hard bargaining?

The key is always the reasonableness of the victim’s position. In duress, did they truly have no reasonable alternative? In undue influence, was their free will actually overcome, or did they simply make a decision they later regretted?

The Remedy: Voidable, Not Void

Both duress and undue influence make a contract voidable at the victim’s option, not void from the start. This distinction matters. The victim can choose to ratify the contract if they want. They can also wait and assert the defense later when the other party tries to enforce it. But they must act within a reasonable time after the duress or undue influence ends.

If the victim affirms the contract after regaining free will, they may lose the right to avoid it. If they wait too long to disaffirm, they may be deemed to have ratified it. The MBE occasionally tests these timing issues, so watch for fact patterns where the victim delays before trying to void the contract.

What to Memorize for Test Day

Lock in these elements:

Duress requires: (1) an improper threat (physical, criminal prosecution, bad-faith civil suit, or economic), and (2) no reasonable alternative for the victim.

Undue influence requires: (1) unfair persuasion by someone in a position of trust, confidence, or authority, and (2) the victim’s free will was overcome (look for vulnerability, dependence, isolation, or fiduciary relationships).

Both defenses make the contract voidable by the victim, not void. The victim must disaffirm within a reasonable time after the pressure ends.

For economic duress specifically, remember it requires both a serious threat to property or finances and no adequate means to prevent the loss. Hard bargaining alone isn’t duress.

For undue influence, focus on the relationship. The bar examiners signal this defense by emphasizing trust, dependence, or fiduciary duties. If the fact pattern spends time telling you about a caregiver relationship or professional advisory role, they’re setting up undue influence.

When you’re reviewing contract defenses, it helps to see all the rules organized in one place so you can distinguish between duress, undue influence, misrepresentation, mistake, and the other formation defenses. FlashTables covers all of these defenses in the Contracts tables, with each element laid out for quick comparison and active recall practice. Having that structure makes it much easier to spot which defense applies when you’re under time pressure.

The bottom line: Duress is about threats that leave no choice. Undue influence is about trust that’s betrayed. Master the distinction, memorize the elements, and you’ll handle these questions confidently on test day.