- Fair Use Policy
- Help Centre
- Sign In
This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Concept of Duress in contract law
“Duress has been described as ‘the pressure of a big stick or the bottom line’. It is invoked by a party who claims that he was forced into entering the contract or modifying a term in the contract”
Contract Law, Paul A. McDermott
With reference to case law discuss the concept of Duress in contract law.
A party to a contract may plea duress if he or she feels they were unduly pressurised into agreeing to it or to amending its terms. A common sense approach would render the contract null and void, however, it can be difficult to ascertain the true extent of the duress, was the party being threatened with violence against them or their family? Was their property threatened? Or were they just deeply encouraged to agree to its terms? With this in mind, we need to identify what level of duress can render a contract void ab initio or voidable.
In the case of Cumming v Ince (1847) 11 Q.B. 112, a private mental asylum patient was threatened into signing away all her property or the committal order bestowed upon her would never be removed. It was found that the patient had signed away her property under duress and the contract was void. This is different in comparison to the case of Barton v Armstrong (1976) A.C. 104. The plaintiff threatened to kill the defendant if he did not sell his interest in the company they were both major shareholders in. The judge found that the defendant would have sold his share anyway because of business needs and that this was, in fact, his main reason for selling. At this time duress could only be pleaded where it was the sole reason for entering a contract. The courts therefore ruled in favour of the plaintiff.
The two cases differ as duress is clearly prominent in Cumming v Ince but the defendant had ulterior motives for selling in Barton v Armstrong. However, the appeal court for the Barton v Armstrong case later ruled that the original view taken was incorrect and that a plea of duress should stand even if it were not the only reason for entering into a contract. The contract was then void in favour of the defendant in the face of normally being voidable in modern day circumstances.
The above examples both indicate how duress can void or make an agreement voidable but it can be more difficult to identify what level of coercion makes contracts voidable. As McAleer (30 October 2010: 67) points out,
‘There is a large difference between a gun to the head and being subject to a pushy salesman’.
We have all, at one point or another, been subject to the persuasiveness of eager salesmen but by giving our signature does mean we have been coerced into agreeing to a contracts terms? The likelihood is that we have not unless some harmful threat has been set upon us by that salesman. Therefore it is unlikely that any plea for duress would stand in court.
Economic duress can also make a contract voidable. This has often been the plea where the price originally agreed from the outset of the contract has been increased by the other party. That other party may increase the price for legitimate reasons such as notable differences in exchange rate, raw material price fluctuation or even just simple human error. Human error is evident in the case of Atlas Express Ltd v Kafco (1989) 1 All ER 641. Both parties agreed to a contract where the defendant’s merchandise of basketware would be delivered by the plaintiff’s haulage company to Woolworths branches. The price agreed was based on the plaintiff’s assessment of what each load could carry. In fact, a miscalculation meant that original evaluation of what each load could carry was inaccurate and the plaintiff wanted more money for the extra loads they would have to bear. The defendant felt they had no option but to agree to the new price as they were fearful they would not get anyone else to distribute their goods, consequently jeopardising their contract with Woolworths, which it was seriously dependent on. The lack of new consideration in this contract (as the plaintiff was already obliged to deliver the basketware under the terms of the original contract) meant that Tucker J ruled in favour of the defendant under economic duress regardless of the innocent mistake made when estimating the load. There were no reasonable alternatives that the defendant could of availed of and pursued duress in a law court.
Whilst economic duress can be clearly evident in a case, this does not always render the contact voidable. This is shown in North Ocean Shipping Co. Ltd v Hyundai Construction Co. Ltd (The Atlantic Baron) (1978) 3 All ER 1170. Here, payment for building a ship for the plaintiff was to be received by way of instalments. Due to the devaluation of the dollar, the defendants demanded an increase in the agreed price. The plaintiff reluctantly agreed and the credit letter was subsequently increased. The Shipping Company later sued for the extra monies paid but was unsuccessful as Turner (2003: 133) states,
‘…the increase in the letter of credit was sufficient consideration for the fresh promise, and also the delay meant that the contract was affirmed’.
It was in the Shipping Company’s best interests to agree to the increase in price even with the realisation of the duress forced upon them.
In all the above case examples, the underlying threat has more or less been a breach of the law. This raises the question, is it necessary for the duress plea to include economic pressure, breach of contract or a crime? Whilst the answer is no, this does not mean that the duress plea will stand. In the case of CTN Cash and Carry v Gallaher (1994) 4 All ER 714, the plaintiff claimed duress on the grounds that they had been coerced into paying for delivery of cigarettes that they had indeed ordered, but that had been stolen due to the defendant’s mistake of delivering them to the wrong address. The defendant believed the delivery was the plaintiff’s responsibility and therefore threatened to withdraw credit facilities if they did not pay. In the original contract it did state that the defendant reserved the right to withdraw credit facilities at any given time, without notice. The courts ruled in favour of the defendants as they conceded the threat was lawful. While the method of obtaining payment was unfavourable the defendants conduct did not amount to duress.
We have seen how duress can take many different forms and all facts shall be considered before a court will rule in favour of a duress plea. As Stone (2000: 228) describes,
‘The remedy that the victim of duress will be seeking is to escape from the agreement that has resulted from duress – in other words rescission’.
But as we have seen this is a lot easier said than done. Illegitimate pressure put on a person may force them into agreeing to something that they do not actually want to agree to. Furthermore, the degree of that pressure may very well give them grounds to claim duress in a court of law.
“Consideration is some right, interest, profit or benefit for one party, or some detriment, forbearance or loss suffered by another.”
Currie v. Misa (1875) LR 10 Ex 153 at 162.
Discuss the rules of consideration in the context of these comments using relevant examples in your answer.
Consideration can be defined as what parties give or promise to each other as part of an agreement or contract. It may be looked upon that one party to an agreement is receiving a benefit to the detriment of the other party. Consideration is what makes an agreement legally binding however it has been argued that the doctrine should be void. Even if this were the case we would still need some understanding of what can make an agreement enforceable and what cannot.
Promises will be unenforceable if no consideration is present. This was apparent in the case of Aga Khan v Firestone and Firestone (1992) ILRM 31, where it was found that consideration was absent on the sale of land. As Morris J (as he then was) states (McDermott, 2001: 101),
‘It was a voluntary document given by Mr. Firestone in the hope of cementing business relationships. Nowhere in the evidence can I find any suggestion of it forming part of the overall deal…
Accordingly it follows that the agreement being a voluntary agreement is unenforceable’.
There are three types of consideration, executory, executed and past consideration. In order for executory consideration to take place, promises exchange from both parties to the agreement and the contract is carried out at a future date. This is the most common type of consideration. Executed consideration is only applicable in unilateral contracts where the offeree is under no obligation until the other party fulfils their side of the contract. Past consideration is no consideration at all as consideration cannot come into play after the agreement has taken place.
In the eyes of the law, consideration must but sufficient but does not need to be adequate. For consideration to be sufficient it must represent something of value in the courts. However, the value placed on the consideration does not need to be in proportion to the value of the exchange. The courts feel that the parties to a contract are the best judge as to what is adequate for them when it comes to putting a value on the exchange. For example, if I were to sell my car worth £10000 to another party for £100, this £100 which represents consideration, is completely out of proportion to the real value of my car. It would, however, be my decision to sell the car at this cost and the courts would never question the actual physical value put on the exchange. In the case of Chappell & Co v Nestlé (1960) AC 87, wrappers from Nestlé chocolate bars along with a sum of money formed part of the consideration against the gramophone records offered by Nestlé. As Lord Somervell said (McKendrick, 2003: 87),
‘A peppercorn does not cease to be good consideration if it is established that the promise does not like pepper and will throw away the corn’.
This consideration was held to be sufficient even though the wrappers were disposed of by Nestlé.
Not every exchange will form good consideration. It can be difficult to identify what is deemed as valuable. Where an agreement based on natural love and affection or prayers exists, these will not be held as sufficient consideration in court. The same goes for moral obligation and is evident in the case of Zecevic v The Russian Orthodox Christ the Saviour Cathedral (10 August 1988, unreported), HC (Ont). When performing a funeral, a priest or his church would normally expect to receive a sum between $0 and $800 however no set fees were associated with this act. Payment was never discussed between the parties and the plaintiff sued as the funeral did not take place as agreed. As no consideration existed the courts ruled in favour of the defendant.
Consideration comes into question with performance of existing duties already imposed. Where the duty is already imposed by law no consideration will be evident. This was apparent in the case of Collins v Godefroy (1831) 109 ER 1040, where a police officer was due to give evidence at the defendant’s trial. The defendant wanted to ensure the police officer would attend, therefore promised to pay him a sum of money to ensure he would. As the police office was lawfully bound to attend anyway, the agreement was unenforceable. The same principal applies where someone is bound by an existing contract to fulfil a duty. Actually completing that duty will not amount to consideration.
Similar rules apply where someone performs a duty that they already owe to another party. Say, I agree to pay a builder £50000 to build my house. The work is taking a little longer to complete than anticipated so I offer an additional £10000 to finish the job ASAP. Whilst I have offered to pay extra funds in order for the work to be done quicker, there is no new consideration on the builder’s part as he is bound by the original contract to complete the building of my home anyway. No new contract has formed therefore I would not be forced to pay the £10000 if it were to go to court.
Where a party accepts a smaller amount for a debt already owed, they are still able to sue to for the remaining amount under the law. With regards to Pinnel’s case, this new agreement is not binding as the debtor has only fulfilled part of the original agreement. This rule will not apply where the figure is to be set by the courts. There are some exceptions to the rule in Pinnel’s case. Promissory Estoppel as defined by McAleer (30 October 2010: 24) as,
‘Where a person makes a promise, not supported by consideration, to waive a debt or other obligation and where the promise acts on the promise, the promisor is prevented from denying that he made the promise, on the grounds of justice and equity’.
This is evident in the case of Coombe v Coombe (1951) 1 All ER 767. The judge held that it was irrelevant there was a lack of consideration and found in favour of the wife.
We have seen that consideration can take many forms in addition to cold hard cash. While ‘quid pro quo’ may sum it up in a simple way, the exceptions can often contradict the true meaning of consideration. Nevertheless it is obvious it is one of the key elements that will need to be present for a contract to be legally binding regardless of how inadequate the consideration actually is.
Cite This Essay
To export a reference to this article please select a referencing style below:
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
Reference Copied to Clipboard.
If you are the original writer of this essay and no longer wish to have the essay published on the Law Teacher website then please click on the link below to request removal:
More from Law Teacher
More Contract Law Essays
Examples of Our Work
Duress in American law
Jump to navigation
Jump to search
|Part of the common law series|
|Other common law areas|
In jurisprudence , duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against the person. Black’s Law Dictionary (6th ed.) defines duress as “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would]”. Duress is pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law . In criminal law , duress and necessity are different defenses.  
Duress has two aspects. One is that it negates the person’s consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act.  A defendant utilizing the duress defense admits to breaking the law, but claims that he/she is not liable because, even though the act broke the law , it was only performed because of extreme unlawful pressure.  In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability , so that if the defense is not accepted then the criminal act is admitted.
Duress or coercion can also be raised in an allegation of rape or other sexual assault to negate a defense of consent on the part of the person making the allegation.
- 1 Discussion
- 2 Requirements
- 3 In contract law
- 3.1 Physical duress
- 3.1.1 Duress to the person
- 3.1.2 Duress to goods
- 3.2 The elements of economic duress
- 3.1 Physical duress
- 4 Insane duress
- 5 See also
- 6 Notes
- 7 References
Discussion[ edit ]
A defendant who raises a defense of duress has actually done everything to constitute the actus reus of the crime, and has the mens rea because they intended to do it to avoid some threatened or actual harm. Thus, some degree of culpability already attaches to the defendant for what was done.
In criminal law, the defendant’s motive for breaking the law is generally irrelevant unless a defendant is raising an affirmative defense allowed for by law. (Duress may or may not be allowed as an affirmative defence for some particular charge — in particular, it is generally forbidden for murder , and many jurisdictions also forbid it for sexual assault . Malum in se offences, generally, are less likely to recognise duress as a defence than malum prohibitum offences.)
A successful affirmative defence means not that a criminal act was justified, but that the act was not criminal at all. But if no affirmative defence of duress is available, then the duress may be considered as justifying a lighter sentence , typically in proportion to the degree of duress. If the duress is extreme enough, for example, the defendant might be found guilty of murder but given a minimal, or even trivial, sentence.
In some rare cases, a successful argument of duress — even when not an affirmative defence — might result in the jury nullifying the charge by refusing to convict.
The basis of the defense is that the duress actually overwhelmed the defendant’s will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused’s state of mind, and an objective confirmation that the failure to resist the threats was reasonable), thus rendering the entire behavior involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation .
The extent to which this defense should be allowed, if at all, is a matter of public policy . A state may say that no threat should force a person to deliberately break the law, particularly if this breach will cause significant loss or damage to a third person.[ citation needed ] Alternatively, a state may take the view that even though people may have ordinary levels of courage, they may nevertheless be coerced into agreeing to break the law and this human weakness should have some recognition in the law.
A mutant of duress involves hostage taking, where a person is forced to commit a criminal act under the threat, say, that their family member or close associate will be immediately killed should they refuse (commonly known as a Tiger kidnapping ). This has been raised in some cases of ransom , where a person commits theft or embezzlement under orders from a kidnapper in order to secure a family member’s life and freedom. However, duress is not a complete defense to all crimes. For example, the general rule, both at common law and today, is that duress is never a defense to murder; that is, one is never justified in killing another innocent person even if one’s own life has been threatened, although this part may be questioned when multiple people are threatened with death if the defendant does not kill a single or fewer people than threatened (such a situation is similar to the trolley problem ). 
Requirements[ edit ]
For duress to qualify as a defense, four requirements must be met: 
- The threat must be of serious bodily harm or death
- The threatened harm must be greater than the harm caused by the crime
- The threat must be immediate and inescapable
- The defendant must have become involved in the situation through no fault of his own
A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge.
In contract law[ edit ]
|Part of the common law series|
|Defenses against formation|
|Excuses for non-performance|
|Rights of third parties|
|Breach of contract|
|Related areas of law|
|Other common law areas|
Duress in the context of contract law is a common law defence brought about when one of the parties to the contract enjoyed an ascendant position in relation to the other party and abused that position by subjecting the other to threats. A party who has entered into a contract under duress is entitled to rescind or set aside the contract, rendering it voidable (in equity).
Duress is a threat of harm made to compel someone to do something against their will or judgment; especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition. – Black’s Law Dictionary (8th ed. 2004)
Duress in contract law falls into two broad categories: 
- Physical duress
- Economic duress 
Physical duress[ edit ]
Duress to the person[ edit ]
Professor Ronald Griffin, Florida Agricultural & Mechanical College of Law, Orlando, FL, puts physical duress simply: “Your money or your life.”
In Barton v Armstrong ,  a decision of the Privy Council , Armstrong (defendant) sought to coerce Barton (plaintiff) into executing a deed relating to the sale of certain companies by threatening to have him murdered. While the plaintiff took the threats seriously, other business reasons existed for signing the contract. An innocent party wishing to set aside a contract for duress to the person need only prove that the threat was made and that it was a reason for entry into the contract. Furthermore, once it is established that the threat was made, the onus lies on the person who made the threat to prove that the threat made no contribution to the plaintiff’s decision to enter the agreement. 
Common law took a narrow view of the concept of duress in that it was concerned with actual or threatened violence to the person or unlawful imprisonment. Equity, however, adopted a broader “fusion” view of what sort of pressure could constitute coercion for purposes of relief and has since prevailed. 
Duress to goods[ edit ]
In such cases, one party refuses to release the goods belonging to the other party until the other party enters into a contract with them. For example, in Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298, the contract was set aside after Hawker Pacific’s threats to withhold the helicopter from the plaintiff unless further payments were made for repairing a botched paint job.
The elements of economic duress[ edit ]
Economic duress is the use of unlawful economic pressure to compel a party to a contract to agree to demands which they would not have otherwise. 
- Wrongful or improper threat: No precise definition of what is wrongful or improper. Examples include: morally wrong, criminal, or tortious conduct; one that is a threat to breach a contract “in bad faith” or threaten to withhold an admitted debt “in bad faith”.
- No reasonable alternative (but to accept the other party’s terms). If there is an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other sources of funds this element is not met.
- The threat actually induces the making of the contract. This is a subjective standard, and takes into account the victim’s age, their background (especially their education), relationship of the parties, and the ability to receive advice.
- The other party caused the financial distress. The majority opinion is that the other party must have caused the distress, while the minority opinion allows them to merely take advantage of the distress.[ citation needed ] See Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel)  UKHL 9 
Insane duress[ edit ]
In criminal law, when a person is found legally insane because they believed God ordered them to do the crime (” deific-decree “), one interpretation of the insanity is that they acted under a delusion of duress by God.  :615-625
See also[ edit ]
- Tiger kidnapping
- English contract law
- English criminal law
- United States contract law
- Criminal law of the United States
- Self-sacrifice in Halacha (Jewish law)
Notes[ edit ]
- ^ People v. Unger , 362 N.E.2d 319 (1977)
- ^ Handbook on Criminal Law 381 (1972)
- ^ a b Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core. Thomson/Wadsworth . ISBN 0-495-00305-0 .
- ^ “1st Class Investigations Glossary” .
- ^ People v. Anderson, 8 Cal. 4th 767, 50 P.3d 368, 122 Cal. Rptr. 2d 587 (2002).
- ^ “Duress : Introduction to Contracts Law” .
- ^ See Pao On v Lau Yiu Long  3 All ER 65; Pao On v Lau Yiu Long ; Applied in Con Ange v Calogo Bloodstock AG t/as Coolmore Australia  NSWSC 666.
- ^ Barton v Armstrong  AC 104 BAILII
- ^ See Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, 46.
- ^ See J Paterson, A Robertson and A Duke, Principles of Contract Law, (4th edn Thomson Reuters 2012)
- ^ “Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel)  UKHL 9” . Bailii. Retrieved 9 August 2015.
- ^ “Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel)  UKHL 9” . Bailii. Retrieved 1 August 2014.
- ^ Criminal Law – Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business ; John Kaplan , Robert Weisberg , Guyora Binder , ISBN 978-1-4548-0698-1 , 
References[ edit ]
- Westen, Peter & Mangiafico, James (2003). “The Criminal Defense of Duress: A Justification, Not an Excuse – And Why It Matters” (PDF). Buffalo Criminal Law Review. 6 (2): 833–950. doi : 10.1525/nclr.2003.6.2.833 . Archived from the original (PDF) on 2011-12-26.
- Contract law
- Equitable defenses
- Criminal defenses
- All articles with unsourced statements
- Articles with unsourced statements from April 2007
- Articles with unsourced statements from July 2012
- This page was last edited on 12 October 2018, at 06:01 (UTC).
- Text is available under the Creative Commons Attribution-ShareAlike License ;
- About Wikipedia
- Contact Wikipedia
- Cookie statement
- Mobile view