would be an arrangement terminable at will, not upon 10 days' notice.
Even apart from the fact that the July and October agreements did not diminish any rights that plaintiff possessed prior to the execution of those agreements, it cannot be said that those agreements were unconscionable. The principle embodied in U.C.C. § 2-302 is "one of the prevention of oppression and unfair surprise." Official Comment 1. Unconscionability presupposes both the absence of meaningful choice on the part of one party and contract terms unreasonably favorable to the other party. Williams v. Walker-Thomas Furniture Co., 121 U.S. App. D.C. 315, 350 F.2d 445, 449 (D.C. Cir. 1965); cited in Neves v. Riley, 447 F. Supp. 306, 309 (D.D.C. 1978) and Urban Investments, Inc. v. Branham, 464 A.2d 93, 99 (D.C. App. 1983). For the most part, the doctrine of unconscionability is limited in its application to agreements that are so one-sided that it can be said that no real meeting of the minds ever occurred with regard to the contract or terms in question. Calamari & Perillo, supra, § 9-40. The doctrine was not intended to "disturb [the] allocation of risks because of superior bargaining power." Id. at 326 (citing U.C.C. § 2-302, Comment 1). A review of the documents in question, the parties' prior dealings with one another, and the record before the Court reveals no material fact that would support a finding that there is a genuine issue as to whether the two agreements were the product of a meeting of the minds.
In a related argument, plaintiff contends that the July and October agreements were the products of duress or undue influence and are, hence, unenforceable. Before discussing whether either agreement is voidable for duress, we note that plaintiff's reliance upon the doctrine of undue influence is clearly misplaced. "Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare." Restatement (Second) of Contracts § 177(1). At the core of the doctrine is a concern for protecting a party who is either "subservient" to, or has placed trust in, another party. Calamari & Perillo, supra, § 9-10. In all cases, either some confidential relation between the parties exists,
or one party stands in such a weakened position in relation to the other that he is susceptible to unfair persuasion. Calamari & Perillo, supra, § 9-11; Restatement (Second) of Contracts § 177, Comment a. See, e.g., Odorizzi v. Bloomfield School Dist., 246 Ca.App.2d 123, 54 Cal. Rptr. 533 (1966) (teacher accused of homosexuality coerced into resigning). It is hard to imagine how such an "astute [businessman]," Goldstein depo., vol. I, at 38-39, can assert that he was subservient to, or dependent upon, his trading partner.
As distinct from that of undue influence, the doctrine of duress focuses, not upon the relationship between the parties, but upon the means used by one party to gain the other's assent. Specifically, it is a settled principle of law that one party cannot threaten another if "the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient." Restatement (Second) of Contracts § 176(1)(d).
Yet, "hard bargaining between experienced adversaries of relatively equal power ought not to be discouraged. Parties are generally held to the resulting agreement, even though one has taken advantage of the other's adversity, as long as the contract has been dictated by general economic forces." Restatement (Second) of Contracts § 176, Comment f. To call into play the doctrine of duress requires that a threat be wrongful. Rizzi v. Fanelli, 63 A.2d 872, 874 (D.C. Mun. App. 1949). While "any threat which deprives a party to a contract of the free exercise of his will constitutes duress[,]" id. (citing 17 C.J.S. Contracts § 168), the modern trend is to focus upon the alternatives available to the party receiving the threat. Restatement (Second) of Contracts § 175(1) & Comment b (victim must have "no reasonable alternative").
Plaintiff maintains generally that S & A took advantage of La Boucherie's financial straits in order to wrest a hard bargain. Whether or not S & A actually took advantage of La Boucherie is not, however, a question that demands resolution by trial. "Financial pressures, even in the context of unequal bargaining power, do not constitute economic duress." Grubel, 387 N.Y.S.2d at 443. If the means used are themselves lawful -- and no one argues that S & A is guilty of any illegality -- proof of "business compulsion" requires "a showing that the victim's financial straits were caused by the other party." National American Corp. v. Federal Republic of Nigeria, 448 F. Supp. 622, 644 (S.D.N.Y. 1978), aff'd, 597 F.2d 314 (2d Cir. 1979) (emphasis added). The most that can be said here is that S & A may have threatened to terminate La Boucherie if the requisite documents were not signed. But since any contract existing between the parties was terminable at will, S & A, if it indeed made such a threat, did no more than threaten to exercise its rights under the existing contract. Such a threat does not amount to duress. Board of Trustees of Nat'l Training School for Boys v. O.D. Wilson Co., Inc., 77 U.S. App. D.C. 127, 133 F.2d 399, 400 n.4 (D.C. Cir. 1943); Blake Const. Co., Inc. v. C.J. Coakley Co., Inc., 431 A.2d 569, 577 n.5 (D.C. App. 1981); Joseph F. Egan, Inc. v. City of New York, 18 A.D.2d 357, 239 N.Y.S.2d 420, 423 (N.Y. App. Div. 1963). Even a threatened breach of contract is not coercive unless the threat, if carried out, would result in irreparable harm to the threatened party. Sind, 356 A.2d at 657. Applying the law to the undisputed facts of this case, the Court can find no evidence to support a claim that La Boucherie was the victim of duress, economic or otherwise.
Even if La Boucherie has been the victim of duress, "duress merely renders a contract voidable. Thereafter, the victim may ratify the agreement by accepting its benefits." National American Corp., 448 F. Supp. at 645. See also Blum v. Blum, 59 Md. App. 584, 477 A.2d 289, 294 (1984); Restatement (Second) of Contracts § 175; Calamari & Perillo, supra, § 9-8. While delay in disaffirming a contract may preclude avoidance of the contract's operation, Blum, 477 A.2d at 294; Egan, 239 N.Y.S.2d at 423; Restatement (Second) of Contracts § 381, the acceptance of benefits under the contract necessarily bars denial of its validity. National American Corp., 448 F. Supp. at 644; Blum, 477 A.2d at 294, Grubel, 387 N.Y.S.2d at 443, Restatement (Second) of Contracts § 380, § 381, Comment a. It was five months after signing the July 21 agreement, and two months after signing the October 19 agreement, that La Boucherie was terminated as a distributor. During that time, it is undisputed that La Boucherie continued to reap the benefits of its relationship with S & A. Consequently, La Boucherie must be said to have ratified the agreements in question.
B. Claim for Breach of Fiduciary Duties
In its second claim, plaintiff asserts that S & A breached fiduciary duties that it owed plaintiff by virtue of the "close relationship" between the parties. Such a claim simply does not lie where two business partners have dealt with one another at arm's length. See Restatement (Second) of Contracts § 177(1) and Comment a; Calamari & Perillo, supra, § 9-10. Cf. Bell v. Bell, 38 Md. App. 10, 379 A.2d 419, 423 (1977) (no fiduciary relationship existed between husband and wife when element of trust and confidence was lost); Sind, 356 A.2d at 655 (no fiduciary relationship between joint venture partners when they terminated agreement and when neither was in position of trust).
C. Claim for Misrepresentation
In its fourth and final claim for relief, plaintiff maintains that, in soliciting the $1 million note, S & A misrepresented the fact that business relations were to continue as usual. We need not be concerned with whether S & A dealt with La Boucherie truthfully or not, for plaintiff fails in other respects to make out a prima facie case of misrepresentation. In order for plaintiff to survive summary judgment on this claim, there would have to be in the record some evidence that plaintiff took action in reliance upon some alleged misrepresentation by defendant and that, as a result of this action, plaintiff incurred damages. Dresser, 465 A.2d at 839. No such detrimental reliance presents itself in the record before the Court. Even if plaintiff tendered his note in the hopes that past defaults would be forgiven, La Boucherie owed to S & A a sum equivalent to the face value of the note, as plaintiff has acknowledged. Ironically, plaintiff asserts elsewhere in his pleadings that the note was in satisfaction for money owed. If plaintiff owed the monies represented by the note and would have had to tender payment eventually, it cannot be said either that plaintiff took action in reliance upon any alleged misrepresentation or that plaintiff sustained any injury as a result of taking that action.
In the absence of such detrimental reliance, plaintiff fails to state a claim. King v. Indus. Bank of Washington, 474 A.2d 151, 155 (D.C. App. 1984).
Plaintiff and defendant entered into a series of unambiguous agreements, by whose operation plaintiff was put in the situation he now complains of. Because the record reveals nothing but that plaintiff was a sophisticated businessman who could look after his own interests, plaintiff cannot avail himself of any doctrinal shield with which to deflect the force of those agreements. Accordingly, on the undisputed facts of the record, defendant is entitled to judgment as a matter of law.
An appropriate order will be entered.
On the basis of the Court's Memorandum Opinion of this date, it is this 29th day of October, 1985,
That defendant's motion For summary judgment is granted.
That the plaintiff's complaint is dismissed with prejudice.