Duress
Encyclopedia
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 that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence
in the civil law
and from necessity
.
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. As a defense, a defendant
is arguing that he or she should not be held 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 sexual assault
to negate a defense of consent on the part of the person making the allegation.
of the crime and has the mens rea
because he or she intended to do it in order 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 usually irrelevant although, if the reason for acting was a form of justification, this may reduce the sentence
. 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. 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 variant 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. 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 their family member's life and freedom.
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
defense, and if one is successful in proving that the contract is vitiated by duress, the contract may be rescinded, since it is then voidable
.
Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., 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:
, Armstrong threatened to kill Barton if he did not sign a contract, which was set aside due to duress to the person. An innocent party wishing to set aside a contract for duress to the person need to prove only that the threat was made and that it was a reason for entry into the contract; the onus of proof then shifts to the other party to prove that the threat had no effect in causing the party to enter into the contract. Duress can be made also by social influence. Courts frown on this type of contract because there is really no manifestation of mutual assent "meeting of the minds" or agreement to the terms. Rather, when someone is threatened and agrees to act to avoid physical harm by the party making the offer, all you truly have is a mirror of the other party's manifestation of mutual assent not the manifestation of mutual assent by the party being forced or induced to assent to the terms of the contract. Therefore, the meeting of the minds "in truth" does not exist. Since there is no meeting of the minds there can be no contract.
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, 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
Black's Law Dictionary
Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...
(6th ed.) defines duress as "any unlawful threat
Intimidation
Intimidation is intentional behavior "which would cause a person of ordinary sensibilities" fear of injury or harm. It's not necessary to prove that the behavior was so violent as to cause terror or that the victim was actually frightened.Criminal threatening is the crime of intentionally or...
or coercion
Coercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
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 that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence
Undue influence
Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible.-Undue influence in contract law:...
in the civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
and from necessity
Necessity
In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
.
Duress has two aspects. One is that it negates the person's consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
or justification to an otherwise unlawful act. As a defense, a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
is arguing that he or she should not be held liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
because, even though the act broke the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, 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
Culpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
, so that if the defense is not accepted then the criminal act is admitted.
Duress or coercion
Coercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
can also be raised in an allegation of rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
or sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
to negate a defense of consent on the part of the person making the allegation.
Discussion
A defendant who raises a defense of duress has actually done everything to constitute the actus reusActus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
of the crime and has the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
because he or she intended to do it in order to avoid some threatened or actual harm. Thus, some degree of culpability
Culpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
already attaches to the defendant for what was done. In criminal law, the defendant's motive for breaking the law is usually irrelevant although, if the reason for acting was a form of justification, this may reduce the sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
. 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
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
. 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. 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 variant of duress involves hostage
Hostage
A hostage is a person or entity which is held by a captor. The original definition meant that this was handed over by one of two belligerent parties to the other or seized as security for the carrying out of an agreement, or as a preventive measure against certain acts of war...
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. This has been raised in some cases of ransom
Ransom
Ransom is the practice of holding a prisoner or item to extort money or property to secure their release, or it can refer to the sum of money involved.In an early German law, a similar concept was called bad influence...
where a person commits theft or embezzlement under orders from a kidnapper in order to secure their family member's life and freedom.
Requirements
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 or her 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
Duress in the context of contract law is a common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
defense, and if one is successful in proving that the contract is vitiated by duress, the contract may be rescinded, since it is then voidable
Voidable
In law, a transaction or action which is voidable is valid, but may be annulled by one of the parties to the transaction. Voidable is usually used in distinction to void ab initio and unenforceable....
.
Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., 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, and
- Economic duress
Duress to the person
Professor Ronald Griffin, Washburn University School of Law, Topeka, KS, puts physical duress simply: "Your money or your life." In Barton v. Armstrong [1976] AC 104, a decision of the Privy CouncilPrivy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
, Armstrong threatened to kill Barton if he did not sign a contract, which was set aside due to duress to the person. An innocent party wishing to set aside a contract for duress to the person need to prove only that the threat was made and that it was a reason for entry into the contract; the onus of proof then shifts to the other party to prove that the threat had no effect in causing the party to enter into the contract. Duress can be made also by social influence. Courts frown on this type of contract because there is really no manifestation of mutual assent "meeting of the minds" or agreement to the terms. Rather, when someone is threatened and agrees to act to avoid physical harm by the party making the offer, all you truly have is a mirror of the other party's manifestation of mutual assent not the manifestation of mutual assent by the party being forced or induced to assent to the terms of the contract. Therefore, the meeting of the minds "in truth" does not exist. Since there is no meeting of the minds there can be no contract.
Duress to goods
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.Economic duress
A contract is voidable if the innocent party can prove that it had no other practical choice (as opposed to legal choice) but to agree to the contract.The elements of economic duress
- Wrongful or improper threat: No precise definition of what is wrongful or improper. Examples include: morally wrong, criminal, or tortuous conduct; one that is a threat to breach a contract "in bad faith" or threaten to withhold an admitted debt "in bad faith".
- Lack of 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.
See also
- English contract lawEnglish contract lawEnglish contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
- English criminal lawEnglish criminal lawEnglish criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
- United States contract lawUnited States contract law-Definition:A contract is an agreement between legally competent parties to do or not to do something legal for consideration.-Elements:The elements of a contract are mutual assent, consideration, legally competent parties and legal purpose.-Mutual Assent:...
- Criminal law of the United StatesCriminal law of the United States-Common law:This is the original and historical source of criminal law in the United States. It remains the primary source overall.-Statutes:All 50 states have their own penal codes. Therefore, for any particular crime somewhere, it would be necessary to look it up in that jurisdiction. However,...