Duress

Duress is a compulsion, coercion, or pressure to do something. In a legal sense, this refers to forcing someone to do something, or to sign a contract, by threatening his personal safety, his reputation, or other personal issue. When someone agrees to do something only because he is being threatened – or under duress – the law is likely to void the agreement, or determine he is not liable for his forced actions. To explore this concept, consider the following duress definition.

Definition of Duress

Noun

1. Compulsion or coercion, by threat or force.
2. The illegal use of coercion.

Origin

1275-1325       Middle English duress

What is Duress

Duress amounts to the use of coercion, force, false imprisonment, threats, or psychological pressure to get someone to act in a way he does not wish, or which is not in his best interest. Compelling someone to act in such a manner is against the law, and whatever they agree to under duress is invalid in the eyes of the law.

While a believable threat of physical harm is very likely to be considered duress, threats of other types of harm may also render an agreement invalid. No contract is valid unless all parties have signed it willingly. The problem with this loose definition of duress is that many people change their minds, or decide later that they aren’t happy with the agreement, and try to get out of it. Proving that a contract was entered into under duress can be difficult.

For example:

Rhonda and Adam are in a romantic relationship. When Adam decides he needs a new cell phone, Rhonda agrees to buy him the newest model smart phone, and Adam agrees to pay back the $700 over the course of six months. When they break up three months later, Adam has only paid $50 toward the bill.

Rhonda shows up at the bar where Adam stops every evening after work, and presents him with a piece of paper on which she has written “I, Adam, agree to repay Rhonda for the full price of my new cell phone. The total price is $700.” She asks him to sign it, but he figures he doesn’t owe her anything, and refuses. When Rhonda starts making a scene in front of his friends, Adam messily signs his name to the IOU.

When Adam still refuses to pay, Rhonda sues him in small claims court for the remaining balance on the cell phone. At trial, Adam tries to claim that he signed the IOU under duress, and that he doesn’t think he should have to pay her anything. In this example of a duress claim, when he describes the supposed duress imposed upon him – which included Rhonda’s embarrassing remarks about his lack of sexual prowess – the judge finds it amusing, and orders him to pay the amount he owes.

Difference Between Duress and Undue Influence

A contract must be entered into freely, with both parties understanding the terms of the agreement, and signing because it is what they want to do. This is referred to as signing by “mutual assent.” There are some circumstances under which, even if a party picks up a pen and signs his name to the contract, he may not have done so by his own will. Both duress and undue influence are things that may affect mutual assent, as one of the parties has been pressured or coerced to sign. The following explores the difference between duress and undue influence.

Duress

Duress comes in several forms, but it involves a purposeful use of threat or force to convince someone to sign the contract, or to engage in some activity. This type of coercion may be either physical or psychological, which ultimately makes the individual feel he has no option left, but to sign the contract. Although some forms of duress may be challenging to prove in a court of law, the use of physical force, or believable threat of physical harm, if proven, quickly results in nullification of the contract. It may also result in criminal charges against the perpetrator.

Other types of duress, if proven, give the party who was coerced into the contract the option to cancel the contract. This is different from the case of physical force, in which the contract is void, with no choice to be made. Examples of duress include:

• Threat to physically harm the other party, his family, or his property
• Threat to humiliate, disgrace, or cause a scandal about, the other party, or his family
• Threat to have someone else criminally prosecuted, or sued in civil court
• Threat to cause significant economic loss to the other party

The key to each type of duress is whether or not the threats made seemed credible, and that the threatened party had an actual fear it would happen.

Undue Influence

Undue influence is another action that may influence mutual assent. While duress involves threats and coercion to force someone to enter into a contract, undue influence involves the taking advantage of someone through a position of trust. Undue influence can only be exerted by someone in a superior position, or who has a duty to advise the other. When the superior party applies excessive pressure on the other to agree to something he otherwise would not do, it is considered undue influence.

This is not to say that strong recommendation or persuasion amounts to undue influence, which is a defense to a contract. A person in a position of trust or superiority can be expected to offer his opinion, and even to attempt to persuade the other person to a certain action. In order to cross the line to undue influence, the persuasive actions must be excessive, affecting the other person’s sense of free choice.

If undue influence is proven, the influenced party may void the contract if he chooses. The primary difference between duress and undue influence is whether the party doing the convincing is in a position of trust or superiority to the other.

Example of Undue Influence

Paul, who is 83, and suffered a stroke five years ago, has given power of attorney to his son, Michael, so that he can assist him with his affairs. Over the past three years, Michael has made recommendations about such things as whether his father’s roof needed to be repaired, whether his father should sell certain properties he owns, and other financial matters.

One day Michael asks his father to invest $10,000 from his savings into Michael’s new tattoo shop. When Paul thinks about it, he doesn’t want to invest, as his son has been unsuccessful at several other businesses over the years. Michael becomes angry, and begins pressuring his dad, accusing him of giving money to his other children, and not having faith in him. After several days, Michael tells his dad he will no longer take care of things for him, if he doesn’t care enough to invest in Michael’s dream business.

Paul has no other relatives close enough to help him with these issues, so he withdraws $10,000 from his savings account, and gives it to Michael. The agreement Michael presents to him classifies the transaction as an “investment,” rather than a “loan.” When the business fails after a brief time, Paul tries to hold his son responsible for repaying the money, by filing a civil lawsuit. Michael shows the signed contract to the court, claiming the money was an investment in a failed business, not a loan.

In this example of duress vs. undue influence, Michael is in a position of trust – having advised his father on many financial issues, and handled his affairs. Pressuring his father by threatening to stop doing these things is excessive, and essentially left Paul feeling that he had no choice but to pony up the money. The court is likely to view this as undue influence, and give Paul the option of voiding the contract, in which case Michael would be ordered to repay the money.

Committing a Criminal Act Under Duress

Duress isn’t only a defense in a contract case – someone who commits a crime under duress may be able to avoid criminal penalties as well. To successfully claim duress in a criminal trial, three elements must typically be proven:

1. Immediate threat of death or serious bodily harm – Such a threat must have been expressed either through physical actions, or words, at the time of the crime (a threat that happened in the past does not count). While this threat would normally be directed toward the accused, the court may consider a valid threat toward his family.
2. The accused had a very real fear that the person would carry out the threat – While understanding how afraid someone might have been is subjective, the court considers whether the person doing the threatening could reasonably have carried out the act, and whether it is reasonable that another person would have been afraid in a similar situation.
3. The accused did not have a reasonable opportunity to escape the threat, other than by committing the criminal act – The defendant must have truly believed he had no other way to avoid the harm, and that he had no other choice but to comply.

Duress Example in Illegal Firearms Case

In January, 2003, Keshia Dixon went to two separate gun dealers, where she bought seven guns by giving false information. When she was charged with the crimes of illegally buying firearms, and lying to firearms dealers, she claimed that she had committed the crimes under duress. Dixon told authorities that her boyfriend, Thomas Wright, had threatened to kill her and her three children if she didn’t buy the guns for him. As a convicted felon, Wright could not legally buy the guns himself.

In making her claim for duress, Dixon told a story of ongoing abuse by Wright, and said he had beat her several times the week she committed the crime. Unfortunately, the Fifth Circuit court had previously determined that a criminal defendant claiming duress would have to prove each element of duress, by a preponderance of evidence. Because she could not sufficiently prove each element, Dixon was convicted.

Dixon appealed her conviction, arguing that the Fifth Circuit’s rule should be changed because, if someone acts under duress, they did not have the intent to commit the crime, which is a critical element for the prosecution to prove. This would send the burden of proof beyond a reasonable doubt back to the prosecution. Because the Circuit courts in various states disagreed on the burden of proof issue, the case went before the U.S. Supreme Court.

The Court ultimately decided in favor of the government, holding that the burden to prove duress is place on the defendant. In his concurrence, Justice Samuel Alita said, “Congress is certainly free to alter this pattern and place one or both burdens on the prosecution …”

Justice Stephen Breyer dissented, offering a different view, stating that, while he agreed that the burden of proving duress lies on the defendant, the burden of convincing a jury, beyond a reasonable doubt, should always lie with the prosecution.

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Mutual Assent – An agreement between two parties to a contract. Also known as “a meeting of the minds.”
• Preponderance of Evidence – The belief by a jury or judge that evidence presented by one party in a civil lawsuit is more convincing, or believed to be more truthful, than that presented by the opposing party. In other words, it is more likely than not that such evidence is true.