Duress

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.[1] 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.[2] 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.

Contents

Discussion

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 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.[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 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.

Requirements

For duress to qualify as a defense, four requirements must be met:[1]

  1. The threat must be of serious bodily harm or death
  2. The threatened harm must be greater than the harm caused by the crime
  3. The threat must be immediate and inescapable
  4. 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 law 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:[3]

  • Physical duress, and
  • Economic duress

Physical 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 Council, 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

  1. 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".
  2. 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.
  3. 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.
  4. 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

Notes

  1. ^ a b Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core. Thomson/Wadsworth. ISBN 0-495-00305-0. 
  2. ^ http://www.pi1stclass.com/glossary.htm
  3. ^ http://www.4lawnotes.com/outlines/duress.htm

References

  • Westen & Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters, (2003) Vol. 6 Buffalo Criminal Law Review, 833.

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Look at other dictionaries:

  • duress — du·ress /du̇ res, dyu̇ / n [Anglo French duresce, literally, hardness, harshness, from Old French, from Latin duritia, from durus hard]: wrongful and usu. unlawful compulsion (as threats of physical violence) that induces a person to act against… …   Law dictionary

  • duress — du‧ress [djʊˈres ǁ dʊ ] noun [uncountable] LAW the illegal or unfair use of force or threats to make someone do something: • He claimed that he had signed the contract under duress. * * * duress UK US /djʊˈres/ noun [U] LAW ► threats used to… …   Financial and business terms

  • Duress — Du*ress , v. t. To subject to duress. The party duressed. Bacon. [1913 Webster] …   The Collaborative International Dictionary of English

  • Duress — Du ress, n. [OF. duresse, du?, hardship, severity, L. duritia, durities, fr. durus hard. See {Dure}.] 1. Hardship; constraint; pressure; imprisonment; restraint of liberty. [1913 Webster] The agreements . . . made with the landlords during the… …   The Collaborative International Dictionary of English

  • duress — ► NOUN ▪ threats or violence used to coerce a person into doing something: confessions extracted under duress. ORIGIN originally in the sense harshness, cruel treatment : from Latin durus hard …   English terms dictionary

  • duress — [doo res′, dyoores′] n. [ME dures < OFr durece < L duritia, hardness, harshness < durus, hard < IE base * deru , tree, oak (orig. ? hard) > TREE] 1. imprisonment 2. the use of force or threats; compulsion [a confession signed under …   English World dictionary

  • duress — early 14c., harsh or severe treatment, from O.Fr. duresse, from L. duritia hardness, from durus hard (see ENDURE (Cf. endure)). Sense of coercion, compulsion is from 1590s …   Etymology dictionary

  • duress — constraint, coercion, compulsion, violence, *force, restraint …   New Dictionary of Synonyms

  • duress — [n] threat, hardship bondage, captivity, coercion, compulsion, confinement, constraint, control, detention, discipline, force, imprisonment, incarceration, pressure, restraint, violence; concepts 14,674 …   New thesaurus

  • duress — Any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). Subjecting person to improper pressure which overcomes his will and coerces him to comply… …   Black's law dictionary

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