2.
Sir William Blackstone divides duress into two sorts: First. 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. 2 Inst. 482; 3
Caines' R. 168; 6 Mass. R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5
Shepl. R. 338. Where the proceedings at, law are a mere pretext, the
instrument may be avoided. Aleyn, 92; 1 Bl. Com. 136.
3.
Second. 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. 1 Bl. Com. 131. In this case, a man way avoid his own
act. Id. 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. 2 Inst. 483; 2 Roll. Abr.
124 Bac. Ab. Duress; Id. Murder, A; 2 Str. R. 856 Fost. Cr. Law, 322; 2
St. R. 884 2 Ld. Raym. 1578; Sav. Dr. Rom. §114.
4.
In South Carolina, duress of goods, under circumstances of great
hardship, will avoid a contract. 2 Bay R. 211 Bay, R. 470. But see
Hardin, R. 605; 2 Gallis. R. 337.
5.
In Louisiana consent to a contract is void if it be produced by
violence or threats, and the contract is invalid. Civ. Code of Louis.
art. 1844.
6.
It is not every degree of violence or any hind 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 0ther circumstances calculated to give
greater or less effect to the violence or threats, must be taken into
consideration. Id. art. 1845. The author of Fleta states the rule of the
ancient common law thus: "Est autem metus praesentis vel futuri
periculi causa mentis trepidatio; est praesertim viri constantis et non
cujuslibet vani hominis vel meticulosi et talis debet esse metus qui in
se contineat, mortis periculum, vel corporis cruciatura."
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. Id. 1846.
8.
Violence or threats are cause of nullity, not only where they are
exercised on the contracting party, but when the wife, the hushand, the
descendants or ascendants of the party are the object of them. Id. 1847.
Fleta adds on this subject: "et exceptionem habet si sibi ipsi
inferatur vis et metus verumetiam si vis ut filio vel filiae, patri vel
fratri, vel sorori et ahis domesticis et propinquis."
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. Id. 1850. See Norris Peake's Evid. 440, and the cases
cited also, 6 Mass. Rep. 506, for the general rule at common law.
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. Id.1851.
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. Id. 1853. Vide, generally, 2 Watts, 167; 1 Bailey, 84; 6 Mass. 511; 6 N. H. Rep. 508; 2 Gallis. R. 337.
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