1. Duress Overview
2. Dealing With Duress in Court
3. The Two Kinds of Duress
4. Duress Capable of Voiding a Contract
5. Telling Duress From Undue Influence

Duress is the unlawful act of forcing an entity to act against their will or interest through the use of threats or psychological pressures.

Duress Overview

Duress can serve as a kind of defense for an accused person who committed a crime because they were compelled by threats to do so. If duress is employed to compel someone to break the law, the accused lawbreaker has the right to claim that they didn't commit the crime voluntarily, but were forced to do so by someone who threatened them with harm if they didn't comply.

When someone is prevented from taking action (or not taking action) by their free will because of threats to physically harm them or adversely influence their wellbeing, finances, and so on, duress occurs. 

Duress occurs when any of the following persons are threatened with harm for a party to comply:

  • The party in question.
  • The party's spouse.
  • The party's children.
  • The party's parents.
  • The party's other loved ones and intimate associates.

Duress is different from undue influence as a concept used in the law of wills. Undue influence involves a trusted person who holds a respected position in the esteem of the person who owns the will and is pressurized unduly to do things against their will.

Dealing With Duress in Court

In a lawsuit, the Federal Rules Civil Procedure requires the defense counsel to approach an accusation of duress by closely considering and addressing the facts surrounding it, rather than baselessly denying it. Apart from murder, any crime an individual is forced by someone else to commit by illegal threats of physical harm will typically not be held against them by the law.

The Two Kinds of Duress

Duress is divided into two kinds by William Blackstone. The first is the duress that takes away the physical freedom of an entity by imprisonment. If someone is unlawfully denied their physical freedom until they sign a contract, the contract is voidable by them. However, if someone is lawfully imprisoned and is required to sign an agreement as a legal condition for their discharge, that isn't duress of imprisonment. Furthermore, the person can't void such an agreement.

The second kind of duress is the kind involving threats to kill the person or physically harm them by doing awful things to them like cutting off their limbs and so on. Someone who was forced into a contract through such threats can void the contract.

Duress Capable of Voiding a Contract

However, not every threat of physical violence or harm can void a contract. The threat must be the kind that can reasonably scare a regular, fearless person in order to be able to void a contract. When dealing with a case of duress, the state of health, sex, age, and temperament of the victim must be considered.

If a contract is signed by the use of duress, it is voidable whether or not the party to benefit from it is aware of how the signing was achieved and whether or not they took part in the threatening.

Telling Duress From Undue Influence

Determining what constitutes duress in a contract can be a bit tricky for the everyday person. It is not unusual for people to mistake the concept of undue influence for duress, or to mistake a lawful application of force to achieve compliance with the law for duress. That is because some severe forms of undue influence can seem like duress to a regular person. 

For instance, Molly has a stroke and the only family member who's within reach and consistently cares for her is her niece, Melisa. Melisa, however, secretly hopes to inherit Molly's property instead of her uncaring, wayward son. When Molly, on finding out, disagrees to change her will to let Melisa inherit her property, Melisa threatens to never see her again, which can worsen Molly's health and perhaps even lead to her death. So, Molly signs the contract against her will to keep Melisa around to take care of her.

There are some elements of duress and some elements of undue influence in the above illustration. First, Molly's life is threatened and her whole wellbeing put on the line. Next, Melisa is in a special relationship with Molly (a niece-aunt relationship) and has Molly at her mercy. What qualifies for undue influence or duress requires the knowledge of a qualified lawyer to unmistakably determine in some cases.

If you need help with duress, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.