duress

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Criminal defenses

Part of the common law series

Insanity · Immunity · Mental disorder Diminished responsibility Intoxication · Infancy Automatism · Alibi Consent · Mistake Duress · Necessity Provocation · Self defense False confession · Entrapment

See also Criminal law and procedure

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For English law on the criminal defense, see duress in English law. For contract law, see Duress (contract law)

Duress or coercion (as a term of jurisprudence) is a possible legal defense, one of four of the most important justification defenses^[1], by which defendants argue that they should not be held liable because the actions that broke the law were only performed out of an immediate fear of injury. 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]." The notion of duress must be distinguished both from undue influence in the civil law and from necessity which might be described as a form of duress by force of circumstances.^{[citation needed]} Note that in criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so it could possibly lead to an easy conviction. Of a criminal

Duress or coercion can also be raised in an allegation of rape or sexual assault to negate a defence of consent on the part of the person making the allegation.

Discussion

In this situation, the defendant 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 the 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 argues that the threats made by the other person 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), so that his or her entire behavior was 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 simple 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, wherein a person is forced to commit criminal act under the threat that their family member or close associate will be immediately killed should they refuse. This has been raised in some cases of ransom wherein a person commits theft or embezzlement under orders from a kidnapper in order to secure their family member's life and freedom.

Requirements

In order for duress to qualify as a defense, four requirements must be met:^[1]

1. Threat must be of serious bodily harm or death
2. Harm threatened must be greater than the harm caused by the crime
3. 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 one.

The defense cannot be used for cases of murder [although in the case of Re A, doctors successfully applied to the Court of Appeal for permission to split conjoined twins, saving one of them and essentially murdering the other, this was later seen as a case of pure necessity] (even for participants of a murder [following Howe (1987)]), cases of attempted murder (stated in the obiter dicta of Howe (1987) and confirmed in the case of Gotts (1992)) and some forms of treason. (Cases are in reference to the case law of England and Wales.)

In contract law

Contract law

Part of the common law series

Contract formation

Offer and acceptance · Mailbox rule Mirror image rule · Invitation to treat Firm offer · Consideration

Defenses against formation

Lack of capacity Duress · Undue influence Illusory promise · Statute of frauds Non est factum

Contract interpretation

Parol evidence rule Contract of adhesion Integration clause Contra proferentem

Excuses for non-performance

Mistake · Misrepresentation Frustration of purpose · Impossibility Impracticability · Illegality Unclean hands · Unconscionability Accord and satisfaction

Rights of third parties

Privity of contract Assignment · Delegation Novation · Third party beneficiary

Breach of contract

Anticipatory repudiation · Cover Exclusion clause · Efficient breach Fundamental breach

Remedies

Specific performance Liquidated damages Penal damages · Rescission

Quasi-contractual obligations

Promissory estoppel Quantum meruit

Related areas of law

Conflict of laws · Commercial law

Other common law areas

Tort law · Property law Wills, trusts and estates Criminal law · Evidence

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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:

• 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.

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.

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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