duress


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Duress

Unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform.

Duress also encompasses the same harm, threats, or restraint exercised upon the affected individual's spouse, child, or parent.

Duress is distinguishable from Undue Influence, a concept employed in the law of wills, in that the latter term involves a wrongdoer who is a fiduciary, one who occupies a position of trust and confidence in regard to the testator, the creator of the will.

Duress also exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.

As a defense to a civil action, the federal Rules of Civil Procedure require that duress be pleaded affirmatively.

Except with respect to Homicide, a person who is compelled to commit a crime by an unlawful threat from another person to injure him, her, or a third person, will generally not be held responsible for its commission.

Cross-references

Threats.

duress

n. the use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find them null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime. The most famous case is that of publishing heiress Patty Hearst, who was kidnapped, raped, imprisoned and psychologically tortured until she joined her captors in a bank holdup and issued statements justifying her actions. She was later convicted of the bank robbery, but was eventually pardoned by President Jimmy Carter.

duress

noun bondage, captivity, coaction, coercion, compulsion, confinement, constraint, control, dominance, enforcement, exaction, force, high pressure, impressment, necessitation, obligation, press, pressure, repression, restriction, stress, subjection, subjugation, threat
Associated concepts: actionable duress, business compullion, defense of duress, duress of goods, duress of propprty, legal duress, moral duress, payment under duress, undue influence
Foreign phrases: Vani timores sunt aestimandi, qui non cadunt in constantem virum.Those fears are to be reearded as groundless which do not affect an ordinary man. Nihil consensui tam contrarium est quam vis atque metus. Nothing is so contrary to consent as force and fear. Vani timoris justa excusatio non est. A frivolous fear is not a lawful excuse.
See also: captivity, coercion, compulsion, constraint, force, intimidate, main force, pressure, restriction, stress, subjection

duress

pressure to act in a certain way, in particular where there is an element of physical force. It has different effect in different branches of different legal systems.

In English criminal law, duress is a defence, albeit limited, to criminal charges, probably now also murder. In Scots criminal law, the defence is known too. Such dicta as exist indicate that the defence is not available in cases of murder in Scotland.

In the law of contract, its primary denotation is of actual violence or threats of violence towards the contracting party or those close to him. The effect is to allow the contract to be avoided. The notion of economic duress has gained ground, reflecting the fact that economic pressure can affect conduct and be reprehensible. See also UNDUE INFLUENCE.

DURESS. 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.
     2. 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.
     3. 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 sufficient reason. 1 Bl. Com. 131. In this case, a man way avoid his own act. Id. Lord Coke enumerates four instances 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. Sec. 114.
     4. In South Carolina, 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.
     5. In Louisiana 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.
     6. It is not every degree of violence or any hind of threats, that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health; temper and disposition of the party, and other 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 thus: "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."
     7. 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.
     8. Violence or threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the husband, 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."
     9. 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 shall 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.
    10. 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, 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.
    11. 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, any threats, even of slight injury, 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.

References in periodicals archive ?
Many subsequent cases that have addressed the defence of duress in the refugee context have relied exclusively on Ramirez for the relevant doctrine.
Since 2012, an increasing number of Federal Court cases have also relied on Canadian criminal law precedents to determine the doctrinal approach to duress and necessity in the refugee context.
In Oberlander v Canada (AG), the Federal Court relied on the test for duress established in Ramirez, but also noted that Canadian criminal law aspects of duress should also be addressed "in so far as they were applicable to this case" or potentially "as an interpretive aid".
71) When asked to enforce these arbitration clauses, a judge should apply the "no reasonable alternative" test to hold that the consumer entered the contract for the essential good under duress and therefore no contract was ever actually formed.
This Comment has also suggested that courts and arbitrators should apply the doctrine of duress to hold that certain "contracts" containing forced-arbitration clauses were never validly formed and therefore cannot be enforced.
For a discussion of where the duress theory could be argued, see infra notes 45-51 and accompanying text.
Blackstone followed similar lines by stating unequivocally that a man under duress "ought rather to die himself, than escape by the murder of an innocent.
This decision reaffirming the common law rule in Howe was significant, as noted by Judges McDonald and Vohrah in their Erdemovic opinion because (1) it overruled an earlier English decision that had allowed duress as a "defence to murder for a principal in the second degree" and represented a "firm rejection of the view in English law that duress, generally, affects the voluntariness of the actus reus or the mens rea"; (15) and (2) that "duress as a defence affects only the existence or absence of mens rea.
While the SJC rejected duress as an affirmative duress to murder, it did reserve the right to consider duress as a mitigating factor in guilt reduction under the Massachusetts capital review statute.
Vasquez, the SJC, by refusing to allow the defense of duress to murder, chose to endorse an impractical and out-dated common-law principle.
Despite these developments of duress in both civil and criminal law, the defense of duress requires more analysis to best protect unwitting victims.
This Part discusses the history of the defense of duress in both contract law and in criminal law.