Duress
Contract context: A contract (or modification) is voidable when a party’s assent was induced by an improper threat that left no reasonable alternative.
Criminal context: An excuse defense when a defendant committed a crime because of a coercive threat of unlawful force that a person of reasonable firmness could not resist.
Elements / Test
Contract — Economic Duress (Austin Instrument v. Loral):
- Improper threat: Threat to do something the party has no right to do — wrongful threat (not merely hard bargaining)
- Always improper: threat to commit crime or tort, threat of criminal prosecution, bad faith threat to breach
- May be improper: threat to breach if party has no legitimate reason
- No reasonable alternative: Victim had no practical choice but to agree
- Threat induced assent: Causation required
Consideration: Improper threat can render even a modification unenforceable even if supported by consideration. Pre-existing duty rule and duress often overlap.
Criminal — MPC § 2.09:
- Coerced by use or threatened use of unlawful force against person (or another)
- Force/threat is such that a person of reasonable firmness in the actor’s situation would have been unable to resist
- Affirmative defense (defendant bears burden of production)
Common law criminal duress (stricter):
- Threat of imminent death or serious bodily harm
- Fear must be reasonable
- Threat must be present (not past or future)
- Defendant must not have recklessly placed themselves in situation
Exceptions and Edge Cases
- Duress by third party: Contract with B entered under duress by C — generally voidable but BFP who takes without notice cuts off the claim
- Not available for homicide: Most jurisdictions; MPC controversial on this
- Economic circumstances: Market pressure, hard bargaining, not duress — defendant must create the difficult choice
- Necessity vs. duress: Necessity involves natural forces; duress involves human threats
Key Cases
| Case | Rule |
|---|---|
| Austin Instrument, Inc. v. Loral Corp. (N.Y. 1971) | Economic duress — subcontractor’s threat to withhold parts was improper; no reasonable alternative |
| Post v. Jones | Distress sale under emergency conditions may not be duress if price is fair |
| United States v. Contento-Pachon (9th Cir. 1984) | Criminal duress — threat to kill family if defendant didn’t swallow cocaine; imminence and no escape evaluated |