Duress

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Duress

Post by notmartha » Tue Apr 05, 2016 12:10 pm

BIBLE

There are no occurrences of the word “duress” in the KJV or any other translation I checked.

The Complete Book of Everyday Christianity, Robert Banks and R. Paul Stevens, 1997
…a promise made under duress, such as a deathbed promise extracted under the emotions of impending grief, violates the voluntary aspect of such an obligation. Being forced or manipulated into a shotgun wedding, agreeing to raise someone’s children or avenge someone’s enemy, or keeping an unhealthy family secret denies the essential voluntary nature of promise making. In the case of a deathbed promise, the promisee is not in a position (after death) to waive the rights she or he presumably has been given by the promiser.
DEFINITIONS

Webster’s Dictionary of the English Language, 1828
DURESS, noun

1. Literally, hardship; hence, constraint. Technically, duress in law, is of two kinds; duress of imprisonment, which is imprisonment or restraint of personal liberty; and duress by menaces or threats [per minas] when a person is threatened with loss of life or limb. Fear of battery is no duress. Duress then is imprisonment or threats intended to compel a person to do a legal act, as to execute a deed; or to commit an offense; in which cases the act is voidable or excusable.

2. Imprisonment; restraint of liberty.
Bouvier’s Law Dictionary, 1856
DURESS.

1. An actual or a threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract, or to discharge one.

2. Sir William Blackstone divides duress into two sorts:

Duress of imprisonment, where a man actually loses his liberty. If a man be illegally deprived of his liberty until he sign and seal a bond, or the like, he may allege this duress, and avoid the bond. But, if a man be legally imprisoned, and either to procure his discharge, or on any other fair account, seal a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. Where the proceedings at, law are a mere pretext, the instrument may be avoided.

Duress per minas, which is either for fear of loss of life, or else for fear of mayhem, or loss of limb, and this must be upon a sufficient reason. In this case, a man may avoid his own act. Lord Coke enumerates four instances in which a man may avoid his own act by reason of menaces: 1st. For fear of loss of life. 2d. Of member. 3d. Of mayhem. 4th. Of imprisonment.

4. In South Carolina, duress of goods, under circumstances of great hardship, will avoid a contract.

5. In Louisiana consent to a contract is void if it be produced by violence or threats, and the contract is invalid.

6. It is not every degree of violence or any kind of threats, that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health; temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.

7. A contract by violence or threats, is void, although the party in whose favor the contract is made, and not exercise the violence or make the threats, and although he were ignorant of them.

8. Violence or threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the husband, the descendants or ascendants of the party are the object of them.

9. If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law, and the circumstances of the case, are of this description.

10. But the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it; an arrest without cause of action, or a demand of bail in an unreasonable sum, or threat of such proceeding, by this rule invalidate a contract made under their pressure.

11. All the above, articles relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract, any threats, even of slight injury, will invalidate it.


Black’s Law Dictionary, 1st Edition, 1891
DURESS,

Unlawful constraint exercised upon a man whereby he is forced to do some act against his will. It may be either "duress of imprisonment,” where the person is deprived of his liberty in order to force him to compliance, or by violence, beating, or other actual injury, or duress per minus, consisting in threats of imprisonment or great physical injury or death. Duress may also include the same injuries, threats, or restraint exercised upon the man's wife, child, or parent.

Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing hlm to do an act contrary to his free will. Code Ga. 1882, § 2637.

By duress, in its more extended sense, is meant that degree of severity, either threatened or impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness. Duress per minas is restricted to fear of loss of life, or of mayhem, or loss of limb, or other remediless harm to the person. 39 Me. 559.
DURESS OF IMPRISONMENT.

The wrongful imprisonment of a person, or the illegal restraint of his liberty, in order to compel him to do some act. 1 B1. Comm. 130, 181, 136, 137; 1 Steph. Comm. 137; 2 Kent, Comm. 453.
DURESS PER MINAS.

Duress by threats. The use of threats and menaces to compel a person, by the fear death, or grievous bodily harm, as mayhem or loss of limb, to do some lawful act, or‘ to commit a misdemeanor. 1 Bl. Con]le 0 Comm. 3‘); 4 Steph. Comm. 83. See METUS.
DURESSOR.

One who subjects another to duress; one who compels another to do a thing, as by menace. Bac. Max. 90, reg. 22.
The Century Dictionary, an Encyclopedic Lexicon of the English Language, 1895
Duress

1. Hardness.

2. Hardship; constraint; pressure; imprisonment; restraint of liberty ; durance

3. In law, actual or apprehended physical restraint so great as to amount to coercion: a species of fraud in which compulsion in some form takes the place of deception in accomplishing the injury.

- Duress of goods- the forcible seizing or withdrawing of personal property without sufficient justification in order to coerce claimant.
—Duress of imprisonment, actual deprivation of liberty.
— Duresa per mlnas, coercion by threats of destruction to life or limb. A promise is voidable when made under duress, whether this is exercised immediately upon the promisor or upon wife, husband, descendant, or ascendant.
Black’s Law Dictionary, 2nd Edition, 1910
DURESS, n.

Unlawful constraint exercised upon a man whereby he is forced to do some act against his will. It may be either "duress of imprisonment," where the person Is deprived of his liberty in order to force him to compliance, or by violence, beating, or other actual injury, or duress per minus, consisting in threats of imprisonment or great physical injury or death. Duress may also include the same Injuries, threats, or restraint exercised upon the man's wife, child, or parent. Noble v. Enos, 19 Ind. 78 ; Bank v. Sargent, 65 Neb. 594, 91 N. W. 597, 59 L. R. A. 296 ; Pierce v. Brown, 7 Wall. 214, 19 L. Ed. 134; Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417; Radich v. Hutchins, 95 U. S. 213, 24 L. Ed. 409; Rollings v. Cate, 1 Heisk. (Tenn.) 97; Joannin v. Ogllvie, 49 Minn. 504. 52 N. W. 217, 16 L. R. A. 376, 32 Am. St. Kep. 581 ; Burnes
v. Burnes (C. C.) 132 Fed. 493.

Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. Code Ga. 1882, § 2637.

By duress, in its more extended sense, is meant that degree of severity, either threatened or impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness. Duress per minas is restricted to fear of loss of life, or of mayhem, or loss of limb, or other remediless harm to the person. Fellows v. School Dist., 39 Me. 559.

—Duress of imprisonment. The wrongful imprisonment of a person, or the illegal restraint of his liberty, in order to compel him to do some act. 1 Bl. Comm. 130, 131, 136, 137; 1 Steph. Comm. 137; 2 Kent, Comm. 453.
—Duress per minas. Duress by threats. The use of threats and menaces to compel a person, by the fear of death, or grievous bodily harm, as mayhem or loss of limb, to do some lawful act, or to commit a misdemeanor. 1 Bl. Comm. 130; 4 Bl. Comm. 30; 4 Steph. Comm. 83. See Metus.
DURESSOR.

One who subjects another to duress ; one who compels another to do a thing, as by menace. Bac. Max. 90, reg. 22.
The Concise Oxford Dictionary of Current English, 1919
Duress

Forcible restraint, imprisonment ; compulsion, esp. imprisonment, threats, or violence, illegally used to force person to do something (under d. ; plea of d., for voiding contract so made),
Black’s Law Dictionary, 4th Edition, 1968
DURESS, n.

Unlawful constraint exercised upon a man whereby he is forced to do some act that he otherwise would not have done. It may be either "duress of imprisonment," where the person is deprived of his liberty in order to force him to compliance, or by violence, beating, or other actual injury, or duress per minas, consisting in threats of imprisonment or great physical injury or death. Duress may also include the same injuries, threats, or restraint exercised upon the man's wife, child, or parent. Coughlin v. City of Milwaukee, 227 Wis. 357, 279 N.W. 62, 67, 119 A. L.R. 990; Radich v. Hutchins, 95 U.S. 213, 24 L. Ed. 409.

Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. Heider v. Unicume, 142 Or. 410, 20 P.2d 384, 385; Shlensky v. Shlensky, 369 Ill. 179, 15 N.E.2d 694, 698. And it is never "duress" to threaten to do that which a party has a legal right to do. Doernbecher v. Mutual Life Ins. Co. of New York, 16 Wash.2d 64, 132 P.2d 751, 755, 756; Miller v. Walden, 53 Cal.App.2d 353, 127 P.2d 952, 956, 957. Such as, instituting or threatening to institute civil actions. Standard Radio Corporation v. Triangle Radio Tubes, 125 N.J.L. 131, 14 A.2d 763, 765; Shipman v. Moseley, 319 Ill.App. 443, 49 N.E.2d 662, 666.
DURESS OF GOODS.

Where the act consists of a tortious seizure or detention of property from the person entitled to it, and requires some act as a condition for its surrender, the act is "duress of goods". Sistrom v. Anderson, 51 Cal.App.2d 213, 124 P.2d 372, 376.
DURESS OF IMPRISONMENT.

The wrongful imprisonment of a person, or the illegal restraint of his liberty, in order to compel him to do some act. 1 Bl.Comm. 130, 131, 136, 137; 1 Steph.Comm. 137; 2 Kent, Comm. 453.
DURESS PER MINAS.

Duress by threats. The use of threats and menaces to compel a person, by the fear of death, or grievous bodily harm, as mayhem or loss of limb, to do some lawful act, or to commit a misdemeanor. 1 Bl.Comm. 130; 4 Bl.Comm. 30; 4 Steph.Comm. 83; In re Nightingale's Estate, 182 S.C. 527, 189 S.E. 890, 898. See Metus.
DURESSOR.

One who subjects another to duress; one who compels another to to do a thing, as by menace.
Bac.Max. 90, reg. 22.
Ballentine’s Law Dictionary, James A. Ballentine, Third Edition, 1969
DURESS

Any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition. Compulsion or restraint by which a person is illegally forced to do or forbear from doing. some act. 25 Am J2d Dur § 1. A species of fraud in which compulsion in some form takes the place of deception. 25 Am J2d Din § 1. As a defense in a criminal prosecution. a present imminent and impending coercion of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. 21 Am J2d Crim L § 100.

The existence of duress is to be determined by the subjective standard of whether the free will of the victim was rather than whether that of a person of ordinary courage and firmness would be overcome thereby. Wise v Midtown Motors. 231 Minii 46. 42 NW2d 404. 20 ALR2d 735.
See business compulsion: coercion: undue influence.
Black’s Law Dictionary, 5th Edition, 1979
Duress.

Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. Heider V. Unicume, 1 42 Or. 4 1 0, 20 P.2d 384, 385. Duress may also include the same injuries, threats, or restraint exercised upon the man's wife, child, or parent. Distinguishable from undue influence because in the latter, the wrongdoer is generally in a fiduciary capacity or in a position of trust and confidence with respect to the victim of the undue influence.

A condition where one is induced by wrongful act or threat of another to make contract under circumstances which deprive him of exercise of his free will. Hyde V. Lewis, 25 Ill.App.3d 495, 323 N.E.2d 533, 537.

Includes any conduct which overpowers will and coerces or constrains performance of an act which otherwise would not have been performed. Williams V. Rentz Banking Co., 1 12 Ga.App. 384, 145 S.E.2d 256, 258.

As a defense to a civil action, it must be pleaded affirmatively. Fed.R.Civil P. 8(c).

One who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime may, under some circumstances, be justified in doing what he did and thus not be guilty of the crime in question.
See also Coercion; Extortion; Undue influence.
Duress of goods.

Where the act consists of a tortuous seizure or detention of property from the person entitled to it, and requires some act as a condition for its surrender, the act is "duress of goods". Sistrom V. Anderson, 5 1 Cal.App.2d 2 1 3, 124 P.2d 372, 376.
Duress of imprisonment.

The wrongful imprisonment of a person, or the illegal restraint of his liberty, in order to compel him to do some act. 1 Bl.Comm. 1 30, 1 3 1 , 136, 137.
Duressor

One who subjects another to duress; one who compels another to do a thing, as by menace.
Duress per minas

Duress by threats. The use of threats and menaces to compel a person, by the fear of death, or grievous bodily harm, as mayhem or loss of limb, to do some lawful act, or to commit a misdemeanor. 1 BI.Comm. 130; 4 BI. Comm. 30. See Metus.
Black’s Law Dictionary, 7th Edition, 1999
Duress

1. Strictly, the physical confinement of a person or the detention of a contracting party’s property. In the field of torts, duress is considered a species of fraud in which compulsion takes the place of deceit in causing injury.

2. Broadly, the threat of confinement or detention, or other threat of harm, used to compel a person to do something against his or her will or judgment. Duress is a recognized defense to a crime, contractual breach, or tort.

Duress of imprisonment

The wrongful confining of a person to force the person to do something.
Duress of the person

Compulsion of a person by imprisonment, by threat, or by a show of force that cannot be resisted.
WEX Legal Dictionary
Economic Duress

In contract law, a defense that can be used by a party to argue against the formation of a binding contract between two parties. To prove economic duress, a party must show that (1) a continuous contract exists between the plaintiff and the defendant; (2) the defendant threatens to terminate the preexisting contract; and (3) the plaintiff under this duress accepts the defendant’s terms and enters the contract.
Duress

When a person makes unlawful threats or otherwise engages in coercive behavior that cause another person to commit acts that the other person would otherwise not commit.
MISCELLANEOUS CITATIONS

U.C.C. § 1-103.
Construction of Uniform Commercial Code to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.
(a) The Uniform Commercial Code must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.
(b) Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.
U.C.C. § 3-202. NEGOTIATION SUBJECT TO RESCISSION.
(a) Negotiation is effective even if obtained (i) from an infant, a corporation exceeding its powers, or a person without capacity, (ii) by fraud, duress, or mistake, or (iii) in breach of duty or as part of an illegal transaction.
(b) To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good faith and without knowledge of facts that are a basis for rescission or other remedy.
Heine v. Wright, 76 Cal. App. 338, 244 P. 955, 956.
Consent is implied in every agreement. It is an act unclouded by fraud, duress, or sometimes even mistake.
Collins v. McDonald (1922), 258 U.S. 416, 42 S.Ct. 326.
"That in a court martial proceeding the only evidence of guilt was defendant's confession made under duress at the instance of a superior officer, whereby he was compelled to become a witness against himself in violation of the Constitution, was only an error in the admission of testimony, which cannot be reviewed in a habeas corpus proceeding."
Fairbanks v. Snow, 145 Mass. 153, 13 N.E. 596
Except perhaps where the duress consists of the heights of bodily compulsion, duress does not void the contract; its effect is to render the contract voidable at the option of the persons against whom the duress has been practiced. If he elects to avoid, he can do so only upon the condition of returning what he has received under it.;
Crimes of the Civil War , Judge Henry Clay Dean, 1868
"No body, either corporate or incorporate, private or public, can do any legal act under the restraints of duress.

"The nominal Congress was for five years under the most carefully ordered duress, the most exacting espionage, the most complete terror ever exercised over any deliberative body invested with law—making powers.

"From the opening of the war until the conclusion of peace, Congress was surrounded with soldiers–menaced by an army, whose bristling bayonets gleaming in the sunlight, flashed upon the windows of the Capitol, and fell upon the eyes of this terrified body. The legislation was dictated by the commander—in—chief of the army, who acted in advance of all legislation.

"The bold men of the opposition were in perpetual danger of assassination or death by the slow torture of the prison. Mobs were organized in every part of the country, and members of Congress were in danger for every word spoken in conflict with the policy of the President, and were imprisoned at his will.
17 C.J.S., "Contracts," §584; 20 Am.Jur., "Evidence," §141
"As a general rule, the party who asserts fraud, duress, or undue influence has the burden of proving his contentions."
Sentinel Fire Insurance Co. v. McRoberts, 179 S.E. 256, 262;
"A waiver procured by duress or fraud is ineffective."


Also see Extortion, Consent, Agreement, Voidable
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