Duress

Duress

In the Past

An actual or a threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract or to discharge one. 1 Fairf. 325.

Developments

Sir William Blackstone divides duress into two sorts: First. Duress of imprisonment, where a man actually loses his liberty. If a man be illegally deprived of his liberty until he sign and seal a bond or the like, he may allege this duress and avoid the bond. But, if a man be legally imprisoned and either to procure his discharge or on any other fair account, seal a bond or a deed, this is not by duress of imprisonment and he is not at liberty to avoid it. 2 Inst. 482; 3 Caines' R. 168; 6 Mass. R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5 Shepl. R. 338. Where the proceedings at, law are a mere pretext, the instrument may be avoided. Aleyn, 92; 1 Bl. Com. 136.

Details

Second. Duress per minas, which is either for fear of loss of life or else for fear of mayhem or loss of limb,; and this must be upon a enough reason. 1 Bl. Com. 131. In this case, a man way avoid his own act. Id. Lord Coke enumerates four instances or cases in which a man may avoid his own act by reason of menaces: 1st. For fear of loss of life. 2d. Of member. 3d. Of mayhem. 4th. Of imprisonment. 2 Inst. 483; 2 Roll. Abr. 124 Bac. Ab. Duress; Id. Murder, A; 2 Str. R. 856 Fost. Cr. Law, 322; 2 St. R. 884 2 Ld. Raym. 1578; Sav. Dr. Rom. 114.

Other Aspects

In South Carolina (see more about this State laws here) , duress of goods, under circumstances of great hardship, will avoid a contract. 2 Bay R. 211 Bay, R. 470. But see Hardin, R. 605; 2 Gallis. R. 337.

More Information

In Louisiana (see more about this State laws here) consent to a contract is void if it be produced by violence or threats and the contract is invalid. Civ. Code of Louis. art. 1844.

Other Issues

It is not every degree of violence or any hind of threats, that will invalidate a contract; they must be such as would naturally run on a person of ordinary firmness and inspire a just fear of great injury (see more about this popular legal topic in the U.S. encyclopedia) to person, reputation or fortune. The age, sex, state of health; temper and disposition of the party and 0ther circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration. Id. art. 1845. The author of Fleta states the rule of the ancient common law therefore: “Est autem metus praesentis vel futuri periculi causa mentis trepidatio; est praesertim viri constantis et non cujuslibet vani hominis vel meticulosi et talis debet esse metus qui in se contineat, mortis periculum, vel corporis cruciatura.”

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A contract by violence or threats, is void, although the party in whose favor the contract is made and not exercise the violence or make the threats and although he were ignorant of them. Id. 1846.

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Violence or threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the hushand, the descendants or ascendants of the party are the object of them. Id. 1847. Fleta adds on this subject: “et exceptionem habet si sibi ipsi inferatur vis et metus verumetiam si vis ut filio vel filiae, patri vel fratri, vel sorori et ahis domesticis et propinquis.”

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If the violence used be only a legal constraint or the threats only of doing that which the party using them had a right to do, they must not invalidate the contract A just and legal imprisonment or threats of any measure authorized by law and the circumstances of the case, are of this description. Id. 1850. See Norris Peake's Evid. 440 and the cases cited also, 6 Mass. Rep. 506, for the general rule at common law.

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But the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract (see more about this popular legal topic in the U.S. encyclopedia), will invalidate it; an arrest without cause of action or a demand of bail in an unreasonable sum or threat of such proceeding, by this rule invalidate a contract made under their pressure. Id. 1851. All the above, articles relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract (see more about this popular legal topic in the U.S. encyclopedia), any threats, even of slight injury (see more about this popular legal topic in the U.S. encyclopedia), will invalidate it. Id. 1853. Vide, generally, 2 Watts, 167; 1 Bailey, 84; 6 Mass. 511; 6 N. H. Rep. 508; 2 Gallis. R. 337. [1]

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Notes and References

1. Partialy, this information about duress is based on the Bouvier's Law Dictionary, 1848 edition. There is a list of terms of the Bouvier's Law Dictionary, including duress.

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