DURESS

MEANING OF DURESS

Both at law and equity, if a person enters into a contract under duress or as a result of undue

influence exercised over him at the material time, it will be deemed that the person has not

voluntarily consented to the transaction; consequently, the contract will be voidable at his option.

The justification for this rule is that contracts falls in the realm of private law, the basis of which

must be the free consent of the parties.

TYPES OF DURESS

1- Duress at Common Law

Duress, which is a common law doctrine, means any actual or threatened violence imprisonment or

restraint of personal liberty of a person, his wife, child, parent or relatives which induces him to

enter into a contract against his will. Duress renders the contracts voidable at the instance of the

party who was forced to enter into the contract. But, the violence or threats of violence must be to

the person on the contracting party. Therefore threats to one’s property will not amount to duress.

Thus, in Skeate v. Beale (1841) 11 Ad. And El. 983, it was held that a landlord’s threat to sell the

goods of his tenant was not duress.

As already mentioned, duress makes the contract voidable at the option of the party who has

suffered it when there is:

a- Actual or threatened Physical Violence or Imprisonment: In Cumming v. Ince (1847) 11 QB

112, X was taken to a private asylum and an inquisition under a commission of lunacy was

held upon her. Before the verdict was given, it was agreed X should be released and should

give up certain deeds she possessed. It was held that, as the agreement to give up the deeds

was made under fear of confinement in the asylum, it was not binding upon X.

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 b- Threatened Criminal Proceedings: The person threatened need not be the actual

contracting party, but may be the husband or wife or near relative of the party. Thus, in

Kaufman v. Gerson (1904) 1 KB 591, G. misappropriated his employer’s money. K the

employer threatened G’s wife that if she did not promise to make good the money out of

her own property, he would prosecute her husband. Consequently, G’s wife agreed to do so,

provided that there would be no prosecution. It was held that, such an agreement could be

forced against her as it had been induced by moral coercion (i.e, duress).

c- Implied Threat of Criminal Proceedings: In Mutual Finance Ltd. v. John Wetton and Sons

(1937) 2 KB 389, W’s son forged the company’s signature to a guarantee. In exchange for a

forged guarantee, m obtained a valid guarantee from the company, because, as M knew,

W’s state of health was such that the prosecution of his son would be likely to endanger his

life. The company was W’s family company. No actual threat of prosecution was made. It

was held that, the guarantee was obtained by undue influence and was voidable.

d- Wrongly Detention or Threatened Seizure of Property: In Maskell v. Horner (1915) 3 KB

106, H owned a market and claimed tolls from M, a produce dealer. M refused to pay, and H

seized his goods, where upon M paid and continued to pay yearly under protest. H’s right to

tolls was subsequently declared illegal. Held, M could recover the payments made.

2- Economic Duress

The widening scope of duress at common law can be illustrated by the recognition being given the

concept of economic duress. Thus in North Ocean Shipping Co. Ltdx v. Hyundai Construction Co. Ltd.

(1979) QB 709; (1978) 3 All ER 1170, the defendant ship builders forced the plaintiffs for whom they

were building a ship to pay an extra 10 per cent, over and above the agreed cost of the threatening

to abandon the construction of the ship midway, knowing that the plaintiffs had already concluded a

lucrative contract to lease the ship to a third party on completion of the construction. It was held, by

Mocatta J., that the action of the defendant constituted economics duress.

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 3- UNDUE INFLUENCE

This arises when a party obtains benefit from the other, whether under a contract or by means of a

gift, by exerting an influence over the latter which prevents him from exercising an independent

judgment. Undue influence is a doctrine of duress as too narrow. Accordingly, the doctrine was

developed to cope with situations of constructive fraud in which contracts or dispositions of

property were made without free or genuine consent. The allegation of undue influence ids

therefore based on the fact that the complainant entered into the contract ( or made a gift of

property) without free consent, in that the other party exerted an influence over him, which

prevented him from exercising an independent judgment in the matter. And, for influence to be

regarded as undue within the meaning of the rule of law which will be sufficient to vitiate a will, it

must be an influence exercised by coercion or fraud. Boyse v. Rossborough 10 ER 1211.

Where there exists a special fiduciary between the parties, for example, relationship of solicitor and

client, doctor and patient, spiritual adviser and disciple, trustee and beneficiary, parent and child,

guardian (i.e. person in loco parentis) and ward, the existence of undue influence in relation to the

contract or exchange of gifts between such parties is presume, and need not be proved as a fact, but

place the burden of proof on the party in whom confidence was reposed to established that the

transaction was not procured by undue influence. It is evident from that the transaction was not

procedure by undue influence. It is evident from the list of special fiduciary relationships

enumerated above that the relationship arises in any situation where one person occupies a position

of dominance over the other. In such a case, equity imposes on the dominant person a duty to be

faithful to the confidence that is reposed in him by the other.

Even where there is no special fiduciary relationship between the parties, yet the court may hold

that the circumstances were such that one of the parties to the contract exerted undue influence

over the other party to the contract. The term, undue influence, is regarded as any conduct on the

part of one of the parties which affects the contract between them and makes it unconscionable to

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allow the parties to be bound by the contract concluded under such circumstances. Therefore, once

it is found that there are some elements of domination by one over the other, in the agreement, the

court will set aside the agreement, but only if it can be shown that the will of the other party was so

overborne as to prevent is exercise of an independent judgment. Even then, it is not sufficient to

establish that a person has a power to overbear the will of the other; it must be proved as a fact that

in the particular case that power was exercised. In other words, in the absence of any special

fiduciary relationship between the parties, the burden lies on the party alleging undue influence to

prove same as the contract presumed to be avoid.

For example, there is undue influence by X over Y if X presses Y to pay or promise him some money

by a threat of criminal prosecution against Y or against Y’s spouse or close relative, Williams v.

Bayley (1866) LR 1 HL 20, or by a threat of destruction of Y’s property, or leakage of Y’s secret. The

onus of proving pressure lies on the complainant.

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