In certain circumstances the fact that an agreement is made under pressure is sufficient reason to invalidate what would otherwise be a good contract. The rules providing for invalidation in such cases are found in the textbooks under the headings of duress and, to a less extent, undue influence and unconscionability. That the existence of pressure sometimes is and should be sufficient to invalidate a contract is not controversial. Few would argue that a contract entered at gunpoint ought to be enforced and the law is clear that such agreements are not enforceable. What is less clear are the principle(s) that underlie such decisions and the proper scope or reach of those principles. These questions are important for both the theory and practice of contract law. Theoretically, because any adequate account of contract law—a doctrine that in the orthodox understanding holds out the ideal of freedom as a core value—must explain that part of the lawin which individual freedom is most directly at issue. Practically, because the recognition in English courts over the last twenty-five years that the defence of duress may be invoked in situations other than threats to a person or even threats to a person's goods (in short, the acceptance of “economic duress”), together with the recent near-elimination of the rule that a promise to perform an existing duty is not good consideration, has meant that courts are regularly required to consider how far the scope of duress should extend.
1. Williams v. Roffey Brothers and Nicholls (Contractors) Ltd.  1 Q.B.I.
2. References in this article to “plaintiffs” and “defendants” and to “plaintiff-based” and “defendantbased” are to be understood in the sense stipulated above, i.e., the plaintiff is the party seeking enforcement of the contract. Of course, owing to the complexities of litigation it is not always the actual plaintiff in a contract case who is seeking enforcement of the contract.
3. “1983” 1 A.C. 366, 400. See also, e.g., Cartwright J., Unequal Bargaining (Oxford 1991) p. 155. The American position is the same: Section 175(1) of the Restatement of Contracts (2d) states that duress is shown if “a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative”
4. The distinction between a plaintiff-based concern for wrongdoing and a defendant-based concern for autonomy is in some respects similar to a distinction employed by Birks P. and Chin N.Y. in “On the Nature of Undue Influence” in J. Beatson § Friedmann D. (eds), Good Faith and Fault in Contract Law (Oxford 1995). In their brief discussion of duress, however, Birks and Chin suggest that the issue in pressure cases is that of the legitimacy of the pressure (although they go on to say, strangely in my view, that invalidity for illegitimate pressure is, in my terminology, defendant-based). See also Birks P. “The Travails of Duress” 1990] L.M.C.L.Q. 342.
5. Fried C., Contract as Promise (London 1981), ch. 7.
6. The principle is clearly stated in the American case of Riggs v. Palmer 115 HY 506, 511 22 NE 188, 190 (1889): “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” See also, e.g., St. John Shipping Corporation v. Joseph Rank Ltd.  1 Q.B. 267, 292.
7. See Lamond G, “Coercion, Threats, and the Puzzle of Blackmail” in A. Simester § Smith A.T.H. (eds.), Harm and Culpability (Oxford 1996);Raz J., The Morality of Freedom (Oxford 1986) 36. I am indebted to Lamond for his sensitive discussion of threats (and of blackmail).Some authors, including Lamond, hold that a threat need not include a conditional request to do something. I am not inclined to this view, but will not press the point since for my purposes it is sufficient if conditional requests can be part of a threat.
8. See Nozick R., “Coercion” in Philosophy, Science and Method: Essays in Honour of Ernest Nagel (New York 1969); also, Beatson J., “Duress, Restitution and Contract Modification” in The Use and Abuse of Unjust Enrichment (Oxford 1990), pp. 118–122.
9. Thus Atlas Express Ltd. v. Kafco Ltd  Q.B. 833 and D. § C. Builders Ltd. v. Rees  2 Q.B. 617, involved threats, whereas Williams v. Roffey Brothers and Nicholls (Contractors) Ltd.  1 Q.B. 1 arguably did not.
10. If such cases were common, the courts' task in renegotiation cases would be extremely difficult. Fortunately, in nearly all cases where an optional breach is “predicted” the speaker knows that breach is unwelcome and is hoping to induce a renegotiation.
11. Contrary to the view advanced in, e.g., Burrows A., The Law of Restitution (London 1993), pp. 164, 179–82; Beatson, op. cit. note 8, at p. 129; Farnsworth E.A., Contracts (Boston 1990), p. 261; Restatement of Contracts (2d) s. 176(l)(d).
12. Halston R., “Opportunism, Economic Duress, and Contractual Modifications”  107 L.Q.R. 649, 662; Farnsworth, op. cit. note 11, at p. 276; H. Mather. “Contract Modification under Duress” (1982) 33 South Carolina L.R. 615; Burrows, op. cit. note 11, at p. 181; Restatement of Contracts (2d), s. 89(a); Uniform Commercial Code s. 2–209(1).
13. Halston, op. cit. note 11, at p. 55; Mather, op. cit. note 11, at pp. 624–6.
14. Smith S.A., “Performance, Punishment, and the Nature of Contractual Obligation” (1997) 60 MLR. 360, 373.
15. See, e.g., Graenberg v. Aetna Ins. Co. 9 Cal. 3d 566, 108 Cal. Rptr. 480, 510 P 2d 1032 (1973); Diamond, “The Tort of Bad Faith Breach of Contract: When, If At All, Should It Be Extended Beyond Insurance Transactions” (1981) 64 Marqueue L.R. 425.
16. As noted in The Alev  1 Lloyd's Rep. 138, 142 & 145.
17. Note that a threat to infringe another person's rights is not always wrongful. One example is where the threat is made in order to avert worse wrongdoing. Thus it is not wrong to threaten a person holding a third person at gunpoint with the destruction of his house unless he lets his victim go. Such threats are of marginal relevance to contract law and are not discussed further.
18. For a similar view, see Fried, op. cil. note 5, at p. 97.
19. The Universe Sentinel [1983” A.C. 366, 401; The Evia Luck  1 Lloyd's Rep. 319, 339; Thome v. Motor Trade Association  A.C. 797. 801; CNT Cash & Carry Ltd. v. Gallagher Ltd.  4 All E.R. 714, 718. The Restatement of Contracts (1st) is clear that lawful and wrongful are distinct: “Acts or threats cannot constitute duress unless they are wrongful & But Acts may be wrongful within the meaning of this rule though they are not criminal or tortious or in violation of a contractual duty.” Some older English authorities held that duress required a threat to do an unlawful act (Hardie and Lane Ltd v. Chilton  2 K.B. 306; Mayor of Bradford v. Pickles  A.C. 587), but this requirement could be evaded by finding that the pressure constituted undue influence: Williams v. Bayley (1866) L.R. 1 H.L. 200; Mutual Finance Co. Ltd. v. Wetton & Sons Ltd.  2 K.B. 389. It should not be supposed that all undue influence cases, or even all cases of actual undue influence, are pressure cases. The essence of undue influence is surrender of judgment. Pressure may, but need not, accompany such a surrender. On lawful threats generally, see Dawson J., “Economic Duress—An Essay in Perspective” (1947) 45 Michigan L.R. 253; Dalzell J., “Duress by Economic Pressure” (1942) 20 N.C.L.R 341; Hale R. “Bargaining, Duress and Economic Liberty” (1943) 43 Columbia L.R. 603; Dawson J., “Duress Through Civil Litigation” (1974) 45 Michigan L.R. 571 & 679; Sutton R., “Duress by Economic Pressure” (1974) 20 McGill L.J. 554; Rafferty N., “Wrongful Pressure in a Finding of Duress” (1980) 43 Alberta L.R. 431; Beatson, op. cit. note 8, at p. 133.
20. An approach taken by Lord Diplock in The Universe Sentinel  A.C. 366, 385.
21. In the second half of this article, where the consent principle is discussed, it is suggested that in many cases involving a “threat” to refuse to contract cases the contract should be invalidated. The reason for invalidity, however, is not the threat itself, but the lack of reasonable alternatives available to the plaintiff.
22. Thus Hale's view that every contract is entered under a threat—the threat not to contract—is rejected: R. Hale, “Coercion and Distribution in a Supposedly Non-Coercive State” (1923) 38 Political Science Quarterly, 470.
23. In CNTCash & Carry Ltd. v. Gallagher Ltd  4 All E.R. 714 a plea of duress on the basis of such behaviour (a threat to withdraw credit facilities) was denied, although the Court of Appeal appeared to allow that in a non-commercial case the defence might have succeeded. In an American case, Hochman v. Zigler's Inc. 139 N.J. Eq. 139, 50 A. 2d 97 (1946), the court invalidated a contract between a landlord and tenant where the landlord had induced the tenant to find a buyer for the tenant's business and then threatened not to go through with a new lease except on revised terms. For a general discussion of why it may be wrong, in certain circumstances, to refuse to contract after inducing an assumption to the contrary, and of the Australian authorities in support of this proposition, see Spence M., “Australian Estoppel and the Protection of Reliance” ( 11 Journal of Contract Law I.). Fortunately, it is not normally necessary in a duress case to determine whether letting a person down in this way is wrongful since, as we shall see, a defence based on such a claim, if successful, will typically also support a no consent defence.
24. For this reason, blackmail is a misleading example to use in support of the view that wrongful threats need not involve a threat to do an unlawful action (see, e.g., Scarman Lord, The Universe Sentinel  A.C. 366, 401). The reason that blackmail is wrong has nothing to do with the wrongfulness of the threatened action, whereas in the standard case of a wrongful threat to do a lawful action it is precisely the wrongfulness of the threatened action that makes the threat lawful: see Beatson, op. cit. note 8, at p. 133.
25. Theft Act 1968 s. 21(1).
26. Lamond, op. cit. note 7, at p. 216. On other possible justifications for blackmail see Lindgren J., “Unravelling the Paradox of Blackmail”.(1984) 84Columbia L.R. 670.
27. Thus it might be held, for example, that a weak form of blackmail is committed where a landowner who has no reason to want a well on his land threatens to sink a well unless a neighbour dependent on the flow of underground water pays him a sum of money (an argument arguably not accepted in Mayor of Bradford v. Pickles  A.C. 587). The American case of Wolf v. Mar lion Corporation 154 A.2d 625 (1959) supports this approach. Duress was found where a person contractually obliged to purchase a house threatened to resell the house to an undesirable purchaser unless his deposit was returned.
28. R. Wright, “Causation in Tort Law” (1985) 73 California L.R. 1735; building on Hart H.L.A. & Honoré A., Causation in the Law (Oxford 1959), p. 106.
29. It is interesting, therefore, that in a case involving just such a threat, Barton v. Armstrong  A.C. 104, 121, Lord Wilberforce appeared to adopt a NESS standard of causation. His Lordship stated that, in order to prove duress, Barton's threat to kill need only be “a” reason for Armstrong entering the contract, adding, significantly, that the possibility that a “contract would have been made even if there had been no threats” was not fatal to a defence of duress.
30. This is especially likely if the plaintiff does not think that non-performance is a breach: E. Macdonald, “Duress by Threatened Breach of Contract”  J. B. L. 460, 473. For a contrary view see Birks P., An Introduction to the Law of Restitution (Oxford 1985), p. 183.
31. Pau On v. Lau Yiu Long  A.C. 614, 635; The Universe Sentinel  A.C. 366, 400; R. Goff & Jones G., Law of Restitution 2d ed. (London 1978), pp. 178–186; Halston, op. cit. note 12, at p. 671. Beatson's contrary view (op. cit. note 8, at p. 123), that the existence of alternative remedies goes to the essence of duress is, however, not entirely rejected. If the alternatives open to a “threatened” party are such that the party is truly indifferent as to whether the threat is carried out then arguably there is no question about causation because no threat has even be made. To make a threat, a person must propose to do something that is unwelcome to the victim. The distinction is a fine one, thus it is fortunate that the result is the same whether we say that no threat was made or that a threat was made but was inoperative. It should also be noted that, as explained below, in respect of the no consent defence the existence of reasonable alternatives clearly goes to the essence of the defence.
32. Pau On v. Lau Yiu Long  A.C. 614, 635.
33. For an excellent discussion of this issue see Beatson, op. cil. note 8.
40. In particular, the policy in favour of compromises and payments made under process of law does not apply if the party threatening to sue (or prosecute) knew the claim to be groundless: see Beatson, op. cil. note 8, at pp. 97–106.
35. For a contrary view, see Nixon v. Furphy (1925) 25 N.S.W. 151, 158.
36.  A.C. 104. See the discussion of Barton above in note 29.
37. See, e.g., Pau On v. Lau Yiu Long  A.C. 614, 636; The Siboen  1 Lloyd's Rep. 293, 335; Hennessy v. Craigmyle  I.C.R. 461, 468; The Atlantic Baron  3 All E.R. 1171, 1183; B & S Contract and Designs v. Victor Green Publications [ 1984] I. C. R. 419, 428; The Universe Sentinel  A.C. 366, 383; The Alev  1 Lloyd's Rep. 138, 145.
38. See cases cited in note 61 below.
39. The way in which freedom is important to contract law is, however, widely disputed. The most important difference is between a subjective and an objective conception of the relationship between free choice and contractual obligation. On a subjective view, if a promise is not made freely then it cannot create a contract. According to this view, when courts enforce contracts in which the defendant's freedom was impaired but the impairment was not known to the plaintiff (e.g., the defendant was influenced by a third party) they are applying non-contractual principles. On an objective view, freedom is of derivative importance in establishing contractual obligation. According to this view, lack of consent only invalidates a contract where the lack of consent is known to the plaintiff. The debate is fundamental to the nature of contractual obligation, but outside the scope of this article. See also the text accompanying note 76 below.
40. See cases cited above in note 37.
41. See, e.g.. Hale, op. cit. note 22, at pp. 476–477; Hale R., “Bargaining, Duress and Economic Liberty” (1943)Columbia L.R. 603; Atiyah P., “Economic Duress and the Overborne Will” (1982) 98 L.Q.R. 197; Halston, op. cit. note 12, at pp. 612–613; Kronman A., “Contract Law and Distributive Justice” (1980) 89 Yale L.J. 472; Bigwood R., “Coercion in Contract: The Theoretical Constructs of Duress” (1996) U.T.L.J. 201; DPP v. Lynch  A.C. 653, 680, 695, 710; Crescendo Management Ply. Lid. v. Weslpac Banking (1988) 19 N.S.W.L.R. 40, 46.
43. Hale, op. cit. note 22; Llewellyn K. “What Price Contract” (1931)Yale L.J. 704, 728; Patterson D., “Compulsory Contracts in the Crystal Ball” (1943) 43Columbia L.R. 731,741; Dalzell J., “Duress by Economic Pressure”, pp. 238–239; Dawson, op. cit. note 43, at pp. 266–267; Coote B., “Duress by Threatened Breach of Contract”  C.L.J. 40, 45; Halston, op. cit. note 12, at p. 665.
44. See, e.g., Fried, op. cit. note 5.
45. See, e.g., Posner R., Economic Analysis of Law 4th ed. (Boston 1992), p. 113.
46. See, e.g., Kronman, op. cit. note 41, at p. 480.
47. See, e.g., Dawson, op. cit. note 43, at p. 287.
48. Kronman, op. dt. note 41.
49. See Lucy W., “Contract as a Mechanism of Distributive Justice” (1989) 9 O.J.L.S. 132, 137.
50. Weinrib E., The Idea of Private Law (Cambridge, MA 1995), chs. 1 & 2.
51. One question raised by this test is how “alternatives” are distinguished from “unrelated options”. It seems clear that where a ship is in danger of sinking and there is a sole rescuer available and willing to contract for a rescue, the options of sinking or contracting are alternatives. On the other hand, a telex sent to the ship making the captain an offer to buy his car does not present an alternative to allowing the ship to sink. The question of how to distinguish alternatives from unrelated options raises complex theoretical issues, but does not appear to have been relevant in actual cases and is not discussed in this article.
52. See Lucy, op. cit. note 49, at p. 39; Hart H.L.A., Punishment and Responsibility (Oxford 1970), p. 152. Judicial endorsements of this test include Pau On v. Lau Yiu Long  A.C. 614, 635; The Universe Sentinel  A.C. 366, 400; The Alev  1 Lloyd's Rep 138, 145; B & S Contract and Designs v. Victor Green Publications  I.C.R 419, 426 & 428; The Atlantic Baron  3 All E.R. 1171, 1175.
53. See Lamond, op. cit. note 7, at p. 226. For a different view see Wertheimer A., Coercion (Princeton 1987), p. 10.
54. See note 39 above and text accompanying note 76 below.
55. The suggestion is less radical than it may appear. For reasons explained below, compromises and payments under process of law should only be invalidated if the terms are unfair.
56. On the economic torts generally, see Cane P., Tort Law and Economic Interests (Oxford 1991). On blackmail, see Smith A.T.H., The Law of Theft 7th ed. (London 1993).
57. See, e.g., Williams v. Bayley (1866) L.R. 1 H.L. 200; Mutual Finance Ltd. v. John Wetton and Sons Ltd.  2 K.B. 389.
58. See, e.g., Norreys v. Zeffert  2 All E.R. 187.
59. “Arguably” because it might be argued that as contractual liability is strict, so too liability for indicating an intention to breach should be strict.
60. The distinction between wrongful threats and necessity is a fine one. As we saw in discussing wrongdoing, a refusal to contract might in certain circumstances be construed as a threat. However, although the distinction between wrongful threats and necessity is relevant to assessing wrongdoing, it is not relevant when applying the consent principle. It does not matter why the defendant has no alternative.
61. In this respect, it is interesting that it is in those duress cases where wrongdoing was less clearly evident (mainly economic duress cases) that English courts appear to have employed the stricter but-for test of causation: see, e.g. Pau On v. Lau Yiu Long  A.C. 614, 635; The Siboen  1 Lloyd's Rep. 293, 336. Contrast Barton v. Armstrong  A.C. 104, where wrongdoing was clearly evident and the weaker NESS test was endorsed.
62. For a more detailed explanation of the notion of free choice applied here and its connection with responsibility, see Frankfurt H., The Importance of What We Care About (Cambridge 1988), chs. 1,2,3,4,8.
63. A person has an autonomous life if, to adopt Raz's words, he is “the author of his own life”. A mere lack of alternatives does not always preclude a person from getting what he wants in life (his only options may be the option he wants anyway), but it will prevent that person from directing the course of his life, that is, from achieving an autonomous life: Raz, op. cit. note 7, at ch. 14.
64. See Frankfurt, op. cit. note 62.
65. A person being tortured, for example, may think that he should not reveal a secret yet be unable to resist the pressure to reveal. On the distinction between pressure which forces someone to act against their best judgment and pressure which is a factor in a person's best judgment, see Lamond op. cit. note 7, at p. 218.
66. The Alev  1 Lloyd's Rep. 138, 1175.
67. Ibid. at p. 1175; Pau On v. Lau Yiu Long  A.C. 614, 636.
68. Atlas Express Ltd. v. Kafco Ltd.  Q.B. 833.
69. Thus I broadly agree with the approach outlined in Tiplady D., “Concepts of Duress” (1983) 99 L.Q.R. 188 and disagree with Atiyah P., “Economic Duress and the Overborne Will” (1982) 98 L.Q.R. 197.
70. This example is similar to the facts of Barton v. Armstrong  A.C. 104. The difference between the tests of causation required by the wrongdoing principle and the autonomy principle helps to explain the differing decisions in Barton reached by the Court of Appeal of New South Wales and the Privy Council.
71. I discuss the concept of a fair price in greater detail in Smith S.A., “In Defence of Substantive Fairness” (1996) 112 L.Q.R. 138.
72. Reference is made here and elsewhere to “fair” terms, but it should be emphasised that, ultimately, it is not the fairness of contract terms, but their acceptability to the plaintiff that matters. The question is: Would the plaintiff have been willing to sign the contract even if he had had a range of sellers? In practice contract terms are acceptable if they are fair. In some situations, for example a contract involving a unique good, it may not be possible to determine a fair price and thus a court must ask directly whether the terms offered would have been, absent pressure, acceptable to the particular plaintiff.
73. See Whish R., Competition Law (London 1993). A similar observation was made by, and helps to explain the decision of, Steyn LJ in CNT Cash & Carry Ltd. v. Gallagher Ltd.  4 All E.R. 714, 717 (wherein a distributor with a monopoly over the sale of popular brands of cigarettes refused to extend credit to a buyer). Two other cases involving standard monopolies in which the courts refused to find duress may also be explicable on this basis: Eric Grapp v. Petroleum Board  W.N. 180; Smith v. Charlick (William) Ltd. (1924) 34 C.L.R. 38.
74. Smith, op. cit. note 71.
75. On the distinction between standard monopolies and situational monopolies and why courts are better equipped to assess the validity of contracts involving the latter, see Trebilcock, op. cit. note 42, atch.4.
76. This issue is discussed briefly in note 39 above.
77. Where there is an available market, the provision of a service, such as rescuing a ship, can plausibly be valued at the cost of the service, i.e., its market value. The ship may be worth more than the cost of the service, but the value of the service to the owner is, arguably, his cost of obtaining that service from someone else in the market. But where there is no available market, as in the necessity cases, it is less obvious how to value the respective losses and benefits: Birks, op. cit. note 30, at pp. 109–140, 304–308; Beatson J., “Benefit, Reliance and the Structure of Unjust Enrichment” (1987) 40C.L.P. 71.
78. See McBride N., “A Fifth Common Law Obligation” (1994) 14 Legal Studies 35, 40.
79. See McBride,Ibid. at pp. 40–43.
80. See, e.g., William Lacey (Hounslow) Lid. v. Davis  1 W.L.R. 932; Leigh v. Dickson (1884) 15 Q.B.D. 60; and other cases cited in McBride, op. cil. note 78 at pp. 40–13.
81. On consumer surplus, see Harris, Ogus & Phillips, “Contract Remedies and the Consumer Surplus” (1979) 95 L.Q.R. 581. The importance of consumer surplus in assessing damages for breach of contract was recently recognised explicitly in Ruxley Electronics & Construction Ltd v. Forsyth  3 W.L.R. 118.
82. Note that the possibility of a “seller's deficit” poses problems for a restitutionary claim as it appears to drive a wedge between the plaintiffs loss and the defendant's benefit. My own view is that for this and other reasons a reliance based claim is more appropriate in cases like that of the rescued ship.
83. Note that if all necessitous contracts were held to be invalid, then restitutionary and reliance based responses would in practice lead to broadly similar results to those that are reached by applying the causation requirement.
84.  A.C. 366, 400.
85. See cases cited in note 52 above.
86. Other examples include the rules regarding innocent misrepresentation and undue influence. On [innocent] undue influence, see Birks & Chin, op. cil. note 4.
87. Thus in Akerblom v. Price (1885) 7 Q.B.D. 129, 132–133, Brelt L.J. held that “If the parties have made an agreement, the court will enforce it, unless it be manifestly unfair and unjust”. See also The Medina (1876) 1 P.D. 272, affd (1876) 2 P.D. 5; The Port Caledonia and the Anna  P. 184.
88. But see United Slates v. Bethlehem Steel Corp 315 US 289, 330 (1942), where Justice Frankfurter, in a powerful dissent, held that a situation where the plaintiff had no choice but to pay the defendant monopolist an extortionate price for vital war supplies was “strikingly analogous” to the salvage and rescue cases. The majority, upholding the contract, did not so much disagree with Frankfurter's principle, as with his conclusion that the plaintiff had no alternatives.
89. See, e.g., Dawson, op. cit. note 43; Hale, op. cit. note 22; Aliyah P., “Contract and Fair Exchange” in Essays on Contract (Oxford 1986).
90. Restatement of Contracts (2d) s. 89(a). See also Uniform Commercial Code, s. 2–209(1) read in conjunction with s. 2 103(1 )(b).
91. A final comment on terminology. Given that wrongdoing and lack of consent are distinct reasons for not enforcing a contract it would be preferable if they were not lumped together under the single heading of duress. One possibility would be to adopt the term “coercion” where the defence is that pressure was wrongfully applied and to use to term duress where the defence is absence of consent. Second, the pressure cases that are currently grouped under the heading of undue influence or unconscionability should be placed together with other pressure cases. Third, the term “economic duress” is unhelpful. The standard example of economic duress, a threat to breach a contract, is no different in kind from other forms of duress by wrongdoing.
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