DURESS
duress (d[y]uu-res).1. Strictly, the physical confinement of a person or the detention of a
contracting party’s property. • In the field of torts, duress is considered a species of fraud in which
compulsion takes the place of deceit in causing injury.
“Duress consists in actual or threatened violence or imprisonment; the subject of it must be
the contracting party himself, or his wife, parent, or child; and it must be inflicted or threatened by
the other party to the contract, or else by one acting with his knowledge and for his advantage.”
William R. Anson, Principles of the Law of Contract 261–62 (Arthur L. Corbin ed., 3d Am. ed.
1919).
“Few areas of the law of contracts have undergone such radical changes in the nineteenth and
twentieth centuries as has the law governing duress. In Blackstone’s time relief from an agreement
on grounds of duress was a possibility only if it was coerced by actual (not threatened)
imprisonment or fear of loss of life or limb. ‘A fear of battery … is no duress; neither is the fear of
having one’s house burned, or one’s goods taken away or destroyed’; he wrote, ‘because in these
cases, should the threat be performed, a man may have satisfaction by recovering equivalent
damages: but no suitable atonement can be made for the loss of life, or limb.’ Today the general
rule is that any wrongful act or threat which overcomes the free will of a party constitutes duress.
This simple statement of the law conceals a number of questions, particularly as to the meaning of
‘free will’ and ‘wrongful.’ ” John D. Calamari & Joseph M. Perillo, The Law of Contracts § 9-2, at
337 (3d ed. 1987).
2. Broadly, 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. • A marriage that is induced by
duress is generally voidable. 3. The use or threatened use of unlawful force — usu. that a
reasonable person cannot resist — to compel someone to commit an unlawful act. • Duress is a
recognized defense to a crime, contractual breach, or tort. See Model Penal Code § 2.09. See
COERCION.“[In most states,] the age-old rule of duress — that the doing of a prohibited act is
not a crime if reasonably believed to be necessary to save from death or great bodily injury —
together with the equally ancient exception in the form of the ‘inexcusable choice,’ are as firm
today as ever except for the realization that they cover only part of the field.” Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 1064 (3d ed. 1982).
“Among defenses, necessity needs to be distinguished from duress. Necessity is generally
regarded as a justification, while duress is held to be an excuse. This means that the person who
acts under necessity chooses to act in a way that the law ultimately approves. The person who acts
under duress acts in a way that the law disapproves and seeks to discourage, but he acts under
circumstances which make conviction and punishment inappropriate and unfair. This is so because
to act under duress is to act under pressures that a person of reasonable firmness would not be able
to resist. Thus, both the theory of necessity and the theory of duress refer to the pressure of exigent
and extraordinary situations, but they do so in different ways.” Thomas Morawetz, “Necessity,” in
3 Encyclopedia of Crime and Justice 957, 959 (Sanford H. Kadish ed., 1983).
duress of circumstances.See NECESSITY(1).
duress of goods. 1. The act of seizing personal property by force, or withholding it from an
entitled party, and then extorting something as the condition for its release. 2. Demanding and
taking personal property under color of legal authority that either is void or for some other reason
does not justify the demand.
duress of imprisonment.The wrongful confining of a person to force the person to do
duress of the person.Compulsion of a person by imprisonment, by threat, or by a show of
force that cannot be resisted.
duress per minas (p<<schwa>>r mI-n<<schwa>>s). [Law Latin] Duress by threat of loss of
life, loss of limb, mayhem, or other harm to a person.
“Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb.
And this fear must be upon sufficient reason …. A fear of battery, or being beaten, though never so
well grounded, is no duress; neither is the fear of having one’s house burned, or one’s goods taken
away and destroyed; because in these cases, should the threat be performed, a man may have
satisfaction by recovering equivalent damages: but no suitable atonement can be made for the loss
of life, or limb.” 1 William Blackstone, Commentaries on the Laws of England 127 (1765).
“Duress per minas is a very rare defence; so rare that Sir James Stephen, in his long forensic
experience, never saw a case in which it was raised. It has, however, been thought that threats of
the immediate infliction of death, or even of grievous bodily harm, will excuse some crimes that
have been committed under the influence of such threats.” J.W. Cecil Turner, Kenny’s Outlines of
Criminal Law 58 (16th ed. 1952).
economic duress.An unlawful coercion to perform by threatening financial injury at a time
when one cannot exercise free will. — Also termed business compulsion.
“Courts have shown a willingness to recognize the concept of ‘economic duress.’ For
instance it has been held that a defence on these grounds may be available to the purchaser of a
ship from a shipbuilder, if the latter extracts a promise of extra payment as a condition of delivery
of the ship.” P.S. Atiyah, An Introduction to the Law of Contract 230 (3d ed. 1981).
moral duress.An unlawful coercion to perform by unduly influencing or taking advantage of
the weak financial position of another. • Moral duress focuses on the inequities of a situation while
economic duress focuses on the lack of will or capacity of the person being influenced. [Blacks Law 8th]