Keith Mack
Duress is a defence in criminal law that excuses a defendant's actions if they were committed under coercion or the threat of force. Duress is often confused with the defence of necessity, as both involve a defendant being forced to commit a crime to avoid serious harm. However, duress specifically refers to a defendant being directly forced or compelled by another person or external circumstances, whereas necessity involves a choice between two bad alternatives that arose from the circumstances. Duress is not a defence for all crimes; for example, it is generally not a defence for murder.
| Characteristics | Values |
|---|---|
| Definition | Duress refers to the act of using force, coercion, threats, or other forms of pressure to compel someone to act against their wishes or interests. |
| Duress as a defence | Duress is a defence in criminal law. It can be used to excuse a defendant's actions if they were committed under duress or coercion, as defined by law. |
| Requirements for duress defence | The defendant must show that their actions were reasonable under the circumstances and based on the fear of imminent serious harm. The threat must be of serious bodily harm or death, and the threatened harm must be greater than the harm caused by the crime. |
| Limitations of duress defence | Duress is not a complete defence to all crimes. It is generally forbidden as a defence for murder and sexual assault. It may also not apply to other serious crimes. |
| Duress in civil law | Duress arises in civil law, specifically in contract law and trusts law. It involves one party to a contract abusing their position of power by subjecting the other party to threats or coercion. |
| Types of duress | Physical duress, psychological duress, economic duress, and financial duress. |
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What You'll Learn
Duress as a defence
Duress is commonly used to defend individuals who are compelled or coerced to commit a crime because of the potential for serious imminent harm. It is similar to self-defence in some respects, as it arises from a threat of imminent death or serious bodily injury, and it requires that the defendant had a reasonable fear that the threat would be carried out. The defence must establish that a reasonable person in the defendant's position would have committed the crime. Duress requires the defendant to show that they had no alternative to committing the crime, and it is not a justification for committing a crime.
Duress can be physical, psychological, or financial. An example of psychological duress is the threat of withholding necessities or demeaning individuals so they act in a certain way. Financial duress can occur when an individual loses their job or faces skyrocketing bills, leading to involuntarily risky financial practices. In the context of contract law, duress occurs when one party to the contract abuses their position of power by subjecting the other party to threats. A party who has entered into a contract under duress is entitled to rescind or set aside the contract.
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Duress in criminal law
Duress is a defence in criminal law, where a defendant charged with a crime can be excused if they committed it under duress or coercion, as defined by law. Duress involves illegitimate threats, where the threat is one of the reasons a person commits a crime, even if it is not the main reason. It is an affirmative defence, so the defendant must present evidence of each element.
Duress is often confused with the defence of necessity. Both involve a defendant being forced to commit a crime to avoid serious harm, but duress is caused by the actions of a specific person, whereas necessity involves a choice between two bad alternatives that arose from the circumstances. Duress is not a justification for committing a crime, but it can serve as an excuse. The defence must establish that a reasonable person in the defendant's position would have also committed the crime. Duress requires the defendant to show that they had no alternative to committing the crime and that they had a reasonable fear that the threat would be carried out.
Duress can be physical, psychological, or financial. It is commonly used to defend individuals who are compelled or coerced to commit a crime because of the potential for serious imminent harm. Psychological duress can involve the threat of withholding necessities or demeaning individuals so they act in a certain way. Financial duress can be caused by negative situations, such as the loss of a job or high bills, which can lead to risky financial practices.
Duress is not a defence for all crimes. It is generally not allowed as a defence for murder, and many jurisdictions also forbid it for sexual assault. This is because, in the case of serious crimes, no threat to the defendant should excuse the commission of the crime.
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Duress in civil law
Duress is a defence used in both criminal and civil cases. In civil law, it is relevant to contract law and trusts law. Duress involves illegitimate threats, and it can be used as a defence when a defendant commits a crime because they were facing the threat or use of physical force. The threat must be imminent, and the defence must establish that a reasonable person in the defendant's position would have also committed the crime.
In the context of contract law, duress occurs when an individual signs an agreement or a promissory note under threat, allowing them to potentially rescind the contract. The threat must be continuous during the act, and courts often disallow duress defences if there is no evidence of actual fear or force. Economic pressures do not typically constitute duress in contractual situations. However, threatening to do an unlawful act, such as breaking a contract, can be considered illegitimate.
A defendant cannot present a duress defence if they were responsible for getting into the situation that resulted in the threat. The defence of duress is available in limited circumstances, and it is statutorily defined in most states. It is important to note that duress is not a complete defence to all crimes. For example, it is generally forbidden as a defence for murder and sexual assault.
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Duress in contract law
Duress in the context of contract law is a common law defence that applies when one party to a contract is in a position of power over the other party and abuses that position by subjecting them to threats. Duress involves illegitimate threats, such as blackmail, which is a threat to do a lawful act. A threat is considered illegitimate if it involves unlawful activity, such as breaking a contract.
For a party to successfully claim duress, they must prove that a threat was made and that it was a reason for entering into the contract. Once this is established, the burden of proof shifts to the party who made the threat to show that it did not contribute to the decision to enter into the contract. This is a narrow interpretation of duress, focusing on actual or threatened violence or unlawful imprisonment.
Economic duress was only recognised as a form of duress late in the 20th century. It is important to note that economic pressure alone may not be sufficient to establish duress, as other factors and business reasons may also influence the decision to enter into a contract. The concept of economic duress recognises that individuals or businesses under financial strain may be left without viable solutions and are compelled to engage in involuntary risky financial practices.
In summary, duress in contract law refers to the abuse of a position of power through threats, which may be physical or economic in nature, to coerce a party into entering a contract against their will. A party claiming duress must prove the existence of a threat and its influence on their decision-making process.
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Duress in economic situations
Duress is a common law defence that can be used to invalidate a contract or excuse criminal liability when a person is compelled to act against their will due to threats or pressure. One specific type of duress is economic duress, which arises in situations where a person is coerced into entering a contract or taking some action due to improper economic pressure or threats. Economic duress focuses on situations where an individual's consent to a contract is not truly free due to financial pressure or exploitation.
Economic duress often occurs when one party uses their superior economic position to exert undue influence or pressure on another party, leaving them with no reasonable alternative but to agree to the contract or take a certain action. For example, imagine a supplier threatens to cut off all supplies to a manufacturer unless the manufacturer agrees to a new contract with significantly higher prices. The manufacturer, facing the prospect of not being able to continue its business without those supplies, might agree to the new contract under economic duress.
To establish economic duress, certain elements must be proven. Firstly, there must be a threat by one party that is intended to coerce the other party into acting against their will. This threat can be explicit or implicit and may involve demanding something that is either unlawful or not part of the existing contractual obligations. Secondly, the threatened action must be such that it leaves the victim with no reasonable alternative but to agree or submit. The victim must demonstrate that they had no reasonable choice but to yield to the pressure and that a person of reasonable firmness in their position would have also succumbed.
Additionally, the threat must be considered improper or unjust. This means that the threat must involve some form of wrongdoing, such as a breach of contract or an illegal act. For instance, threatening to disclose embarrassing but true information about someone is not generally considered an improper threat. However, threatening to breach a contract or engage in illegal behaviour, such as refusing to pay wages or threatening physical harm, could constitute improper conduct.
It's important to note that economic duress does not cover situations where a person enters a contract out of mere financial necessity or hardship. The pressure must be specifically directed at the victim by the other party, and the threatened action must be intended to coerce. For example, if a person agrees to a contract because they are generally in financial difficulty, this would not constitute economic duress. The defence of economic duress aims to provide protection in situations of unfair exploitation or pressure, rather than general financial hardship.
Finally, the victim of economic duress may have remedies available, such as rescinding the contract (i.e., treating it as invalid) or claiming damages for any losses incurred. However, the ability to seek these remedies may depend on the specific circumstances and the willingness of the court to intervene. Each case of alleged economic duress is considered on its own facts, and the bar for proving economic duress can be high.
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Frequently asked questions
Duress is the act of using force, coercion, threats, or other forms of pressure to make someone act against their wishes or interests.
Duress can be physical, psychological, or financial. An example of physical duress is "your money or your life".
Duress is a complete defence in common law, which means that it can be used to defend those who commit crimes because they were forced or compelled to do so by circumstances or the threats of another. Duress involves illegitimate threats.
Examples of duress include hostage-taking, where a person is forced to commit a criminal act under the threat that their family member will be killed if they refuse. Duress can also be invoked in cases of blackmail, where a person does not have to defend the lawful act they threaten (e.g. revealing a secret) but must defend demanding money from a vulnerable person.
