4. DURESS
OVERALL SUMMARY AND EXAMINATION OUTLINE
1. DEFINITION
Duress is defined as some kind of threat, violent or other action which is used to coerce somebody into doing something
against their will. In the context of contract law, this refers to where a party uses duress against the other party in order
for them to enter into a contract which they either do not want to, or where the terms of the contract are unfavourable.
Chloe T 20
, 2. DURESS TO THE PERSON
Unless the party threatening or committing the act of physical coercion can prove that the coercive conduct played no
part in the other party’s decision to conclude the agreement, operative duress too the person will be established.
Barton v Armstrong (1976)
Facts Barton was the managing director of a company which made an agreement to pay $140,000 (Australian) to
Armstrong’s share in the company. Armstrong had threatened to have Barton killed if he did not make the
arrangements. Barton claimed to have the agreement set aside for duress.
Issue Whether Barton was in fact coerced or whether he signed the agreement out of commercial necessity and
the coercion amounted to an ancillary motive. In either event, whether the agreement was voidable.
Held By a majority of three to two the Privy council found for Barton. This was despite the fact that Barton may
still have entered into the agreement for business reasons. The court made it clear that duress would be
operative even if the plaintiff had other reasons for executing the agreement and that the burden of proof
lay on the defendant to prove that the death threat had no effect at all on Barton’s decision to sign the
document.
Reason Lord Cross (for the majority) stated: “if A threatens B with death if he does not execute some document and
B, who takes A’s threat seriously, executes the document it can be only in the most unusual circumstances
that there can be any doubt whether the threats operated to induce him to execute the document. … If
Barton had to establish that he would not have made the agreement but for Armstrong’s threats then their
Lordships would not dissent from the view that he had not made out his case. But no such onus lay on him.
On the contrary it was for Armstrong to establish, if he could, that the threats which he was making and the
unlawful pressure which he was exerting for the purpose of inducing Barton to sign the agreement…
contributed nothing to Barton’s decision to sign.”
Provided threats or acts of physical coercion have been made in order to obtain the other party’s consent, it is not
relevant that the victim may have had reasonable alternatives open to him. Moreover, it seems that a threat of physical
coercion does not need to be express and can be inferred from the coercing party’s past conduct.
Mir v Mir (2013)
Facts The appellant was in a close personal relationship with the respondent and transferred a property to her.
However, he later found out that she was having an affair with someone else. He moved into the flat that
she owned and attacked her that day, and after beating her up, there was a ten-day gap when he was living
in the same flat with her where he didn’t beat her. Later on, she signed an agreement transferring the
property back to him. The court found that there was operative duress, and the appellant appealed.
Issue Whether the one incident where the appellant beat her up was enough to constitute duress.
Held Appeal dismissed. One of the reasons the respondent agreed to the transaction was the implicit threat of
physical coercion were she to withhold consent. On the facts, the respondents reasonably perceived the
threat based on the recent history of her dealings with the appellant; no explicit threat or further act of
physical coercion was necessary.
3. ECONOMIC DURESS
Economic duress involves the application of illegitimate pressures that damage the victim’s economic or financial
interests in such a way as to coerce his will by depriving him of any practical choice but to submit to the impugned bargain.
The doctrine requires a fine balance with the commercial needs of society. Legitimate economic pressure can be
recognised as a useful negotiation tool, and the courts risk going too far with the scope of economic dress. There are two
elements to be met in order to establish economic duress: coercion of the will and illegitimate pressure.
3.1 NATURE OF PRESSURE
In order to establish economic duress, a party must establish that his consent to contract resulted from illegitimate
pressure placed upon him by the other party to the contract.
Chloe T 21
OVERALL SUMMARY AND EXAMINATION OUTLINE
1. DEFINITION
Duress is defined as some kind of threat, violent or other action which is used to coerce somebody into doing something
against their will. In the context of contract law, this refers to where a party uses duress against the other party in order
for them to enter into a contract which they either do not want to, or where the terms of the contract are unfavourable.
Chloe T 20
, 2. DURESS TO THE PERSON
Unless the party threatening or committing the act of physical coercion can prove that the coercive conduct played no
part in the other party’s decision to conclude the agreement, operative duress too the person will be established.
Barton v Armstrong (1976)
Facts Barton was the managing director of a company which made an agreement to pay $140,000 (Australian) to
Armstrong’s share in the company. Armstrong had threatened to have Barton killed if he did not make the
arrangements. Barton claimed to have the agreement set aside for duress.
Issue Whether Barton was in fact coerced or whether he signed the agreement out of commercial necessity and
the coercion amounted to an ancillary motive. In either event, whether the agreement was voidable.
Held By a majority of three to two the Privy council found for Barton. This was despite the fact that Barton may
still have entered into the agreement for business reasons. The court made it clear that duress would be
operative even if the plaintiff had other reasons for executing the agreement and that the burden of proof
lay on the defendant to prove that the death threat had no effect at all on Barton’s decision to sign the
document.
Reason Lord Cross (for the majority) stated: “if A threatens B with death if he does not execute some document and
B, who takes A’s threat seriously, executes the document it can be only in the most unusual circumstances
that there can be any doubt whether the threats operated to induce him to execute the document. … If
Barton had to establish that he would not have made the agreement but for Armstrong’s threats then their
Lordships would not dissent from the view that he had not made out his case. But no such onus lay on him.
On the contrary it was for Armstrong to establish, if he could, that the threats which he was making and the
unlawful pressure which he was exerting for the purpose of inducing Barton to sign the agreement…
contributed nothing to Barton’s decision to sign.”
Provided threats or acts of physical coercion have been made in order to obtain the other party’s consent, it is not
relevant that the victim may have had reasonable alternatives open to him. Moreover, it seems that a threat of physical
coercion does not need to be express and can be inferred from the coercing party’s past conduct.
Mir v Mir (2013)
Facts The appellant was in a close personal relationship with the respondent and transferred a property to her.
However, he later found out that she was having an affair with someone else. He moved into the flat that
she owned and attacked her that day, and after beating her up, there was a ten-day gap when he was living
in the same flat with her where he didn’t beat her. Later on, she signed an agreement transferring the
property back to him. The court found that there was operative duress, and the appellant appealed.
Issue Whether the one incident where the appellant beat her up was enough to constitute duress.
Held Appeal dismissed. One of the reasons the respondent agreed to the transaction was the implicit threat of
physical coercion were she to withhold consent. On the facts, the respondents reasonably perceived the
threat based on the recent history of her dealings with the appellant; no explicit threat or further act of
physical coercion was necessary.
3. ECONOMIC DURESS
Economic duress involves the application of illegitimate pressures that damage the victim’s economic or financial
interests in such a way as to coerce his will by depriving him of any practical choice but to submit to the impugned bargain.
The doctrine requires a fine balance with the commercial needs of society. Legitimate economic pressure can be
recognised as a useful negotiation tool, and the courts risk going too far with the scope of economic dress. There are two
elements to be met in order to establish economic duress: coercion of the will and illegitimate pressure.
3.1 NATURE OF PRESSURE
In order to establish economic duress, a party must establish that his consent to contract resulted from illegitimate
pressure placed upon him by the other party to the contract.
Chloe T 21
