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Trust Maanda
Post Correspondent
ONE of the essential elements of a valid contract is consent.
Without consent, there is no intention to contract.
There are factors that render a contract void and others that render it voidable.
There are various factors that render a contract voidable.
Some of these factors are misrepresentation, mistakes, duress and undue influence.
Today, we discuss one of the grounds that render a contract voidable – duress.
Duress is any form of pressure exerted upon a party in order for that party to do something against their wish.
This can be through threats, violence, constraints, or other action used to coerce someone into doing something against their consent.
A party alleging the use of duress to induce him or her to sign a document is, in fact, alleging that he or she was forced to do an act against their wish.
When a party is wrongfully induced by the other party to enter into a contract through duress, there is no contract due to the absence of intention to contract.
A party who is induced to enter into a contract under duress can have the contract set aside.
The onus is on him or her to establish that he or she did not act or sign the document voluntarily.
The elements of duress necessary to set aside a contract are as follows:
(1) actual violence or reasonable fear, known as metus,
(2) the fear must be due to a threat of some considerable evil to the party or his family,
(3) it must be the threat of an imminent or inevitable evil,
(4) the threat must be contra bonos mores, which means contrary to good morals, and;
(5) the pressure used must have caused damage.
There must be actual violence or reasonable fear that violence will be used.
The fear must be of impending harm to one’s person or family or economic interest.
Duress may take the form of physical violence or fear by means of threats.
The fear must not be fanciful, but must be able to disarm a person of ordinary courage and firmness, taking into account the sort of person the victim is.
Sometimes a person won’t be able to prove that he or she was forced to sign a document.
When something is done under duress, the harm threatened must be illegal.
There is no duress if the action threatened is legal.
The threat or harm threatened should be contra bonos mores.
A threat of action that is legal is not contrabonos mores or against public policy.
Another form of duress is economic duress.
This is when there is a threat against a party’s economic interests.
It is a wrongful or unlawful conduct that creates fear of economic hardship, which affects the exercise of free will in bargaining.
A party alleging duress must protest.
He or she must show that they had no option but to succumb to the pressure.
Where one signs a contract or a document under economic duress, there should be consideration of whether he or she took steps to avoid the forced signing of the document.
A person wishing to rely on duress for resisting an agreement must not just allege that they were forced to sign.
He or she must prove that the pressure brought to them was so severe that it induced them to sign the contract or document without free will.
He or she must show that he or she protested and attempted, or did take steps to avoid the forced action or contract.
Where a person claims that he or she was forced to sign, for example, an acknowledgement of debt, through economic duress, depending on the circumstances, they are required to show that he or she was forced by a person who was in a more economically stronger position to accept the terms of the acknowledgement of debt.
Another form of duress is duress of goods, which is a wrongful threat to detain or the actual detaining of a party’s property, thereby leaving the party with no choice but to accede to a transaction.
Next time you contract, make sure that the other party has animus contrahendi, the intention to contract, otherwise enforcement of a contract may be resisted on the grounds of duress.
On the other hand, a party who alleges duress will not get off the hook by merely alleging it.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
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