Duress and Void Contracts
| Date | 01 November 1966 |
| Published date | 01 November 1966 |
| Author | D. J. Lanham |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02264.x |
DUPlESS AND
VOID
CONTRAC‘I‘S
IT is the view
of
most writers today that duress at common law
renders
a
contract merely voidable and that duress has become
merged in the equitable doctrine
of
undue influence. This appears
to be the position in the United States of
It
is submitted,
however, that in England duress rendered
a
contract void at
eonimon law and that this
rule
has not been affected by thc
Judicature Acts.
If
this is correct, the question
of
common law
duress cannot be regarded as one
of
historical interest only.
It
clearly has
a
vital relevance today. One example will illustratc
this:
A,
by
a
threat to murder
B,
forces
B
to sell him
a
Ming vase,
and then sells the vase to C-a bona fide purchaser without notice
of
the duress. Most writers would say that since
B
had
a
voidable
title the ownership
of
the vase
passes
to
C.
If,
however, the trans-
action between
A
and
B
is void, no title to the vase will have
passed to C and
A
will rcmain owner. In order to support the
thesis that duress renders
a
contract void, it is necessary first to
examine the
case
for holding the contract voidable, secondly to give
reasons for the view that a contract is void
for
duress and finally
to consider the impact
of
the equitable doctrine of undue influence
and that
of
the Judicature Acts on duress.
I.
TIE
CASE
FOR
I-IOLDING
TIIE
CONTRACT
VOIDABLE
No
English casc seems to liavc raised the issue of voidncss squarely.
The most recent judicial pronouncement about the effect
of
duress
on
a
contract is
a
dictum by Davies
J.
in
Pnrojcic
v.
Parojcic
3:
“
I
am inclined to think that the effect
of
duress on
a
marriage is
the same
as
it is on
a
contract,
viz.,
to render
it
not void but
voidable.”
No
authority was cited for the proposition that duress
renders
a
eontract
‘‘
not void but voidable
”
and the point had not
been argued. However,
it
is respectfully submitted that his Lord-
ship was right in equating marriage and other contracts. The
l
y.,
Chcshiro and Bifoot,
The
Law
of
Contract,
6th
ed.,
p.
253;
Sutton
and
tantion
on
Contract,
6th ed.,
p.
169;
Chilly
on
Contracts,
22nd
ed.,
p.
152;
Anson,
Law
of
Contract,
21at ed.,
p.
230;
Polloclr
on
Contracfs,
13th
ed.,
p.
470-13 vioiv which supports the American doctrine of nppnrent consent
(aeo
infra);
Snlmond
and Winfiold,
Law
o
Contracts
(1927),
p.
258. Trietel
hit tho nrithoritiee
lie
cited do not estnblieh this proposition-Law
of
Contract
(1062).
p.
255. Atiynh,
Law
of
Contract,
p.
161,
ia
non-committnl.
Rcstatctnenl. Contracts,
5
5
494-496
;
Williston
on
Contracts
(Roviacd ed.),
as.
1624.
1626;
Corbin
on
Contracts,
8.
228.
J
[IOGS]
1
All
E.R.
1
nt
p.
3;
Webb (1950) 22
M.L.R.
198; Sce
nlso
Malratlcrvan
v.
M.
[lo621
3
All
E.R.
1108 at
p.
1111.
615
in
the
first edition of his textbook nssortc
d
that
R
contrnet
is
void for duress
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