Consent obtained by duress is inoperative, sec 144.

Distinction between "void" and "voidable," 145.

Party or privies may defend on this ground, bona fide endorsees, sec 146.

The danger must be real from standpoint of party threatened, sec 147.

There must be violence threatened, sec 148.

Duress of goods does not invalidate promise, sec 149.

Nor fear of legal procedure, sec 150. Threat of criminal prosecutions avoids, cit. sec 75 ; Savigny, Rom. Rechts, II. sec 114; Gundling, de efficientia metus turn in promissionibus liberarum gentium, turn etiam hominum privato-rum, auxiliis contra metum; Boehmer, de exceptione metus injusti; Rudolph, de effectu metus in paotis et contracti-bus ; Lennep, de eo quod metus causa gestum; Tiennes, de eo quod metus causa gestum erit jure Romano. That a money consideration does not by itself cure a sale by duress, see Foshay v. Ferguson, 5 Hill, 154 ; Beloter. Henderson, 5 Cold. 471. That duress must be specially pleaded, see Bac. Abr. Duress, C. That proof of duress is admissible to impeach execution of document, see Davis v. Fox, 59 Mo. 125 ; Davis v. Luster, 64 Mo. 43; Moore v. Rush, 30 La. Ann. 1157 ; Bane v. Detrick, 52 111. 19 ; Thurman v. Burt, 53 111. 129 ; Bosley v. Shenner, 26 Ark. 280 ; Diller v. Johnson, 37 Tex. 47 ; Olivari v. Menger, 39 Tex. 76. That the doctrines of equity and of law are in this respect the same, see Story, Eq. Jur.

Sec 151

And so of criminal prosecutions of near relations, sec 151a. Must be causal relation between the duress and the consent, sec 152. Person from whom the duress proceeds immaterial, sec 153. Such contracts may be ratified, sec 154.

Sec 144

The earlier scholastic jurists speak of duress as either absolute or compulsive. Absolute is where the person forced is purely passive, his will in no sense cooperating. A contract apparently accepted in such cases is null and void.1 Compulsive duress (kompulsive Gewalt) is where the will of the person coerced is made to yield to the coercion, in which case the obligation is in strict law valid, though open to be impeached ope exceptionis. A contract thus induced is ipso jure valid ; but there arises a counter obligation ex aequitate, by which the contract may be assailed (1) by the actio quod metus causa, (2) by the exceptio doli, (3) by the restitutio in integrum.-But this distinction is stoutly contested by Grotius,2 and by other jurists of the naturalistic school, it being argued by them that what is willed under compulsion is not to be regarded as willed.3

Consent obtained by duress is inoperative.

1 See Savigny, Rom. Rech. III. 109.

2 De jure belli ac pacis, II. cap. XII. sec 7 ; though see Pufendorf, de jure nat. et gent. lib. III. cap. 6, sec 10.

3 Thus Boehmer, L. c. cap. 1, sec 13, p. 779, writes: "Quid enim opus his ambagibus; si mes arbitrio liberari possum, et obligationem nullem in me deprehendo, imprimis cum promissor, si promissarius nolit, liberationem sibi ipsi praestarepossit.".

The German code, following authorities to be hereafter more fully noticed, rejects this distinction, prescribing that expressions of the will to which a party is forced by physicial power, have no binding effect, whether the consent be given or not. As illustrations of such physical power are enumerated the withdrawal of food, the application of torture, and such threats of bodily violence as are likely to overcome in the particular case a resisting will.1 In our own law the same position has been recognized, and it has been frequently ruled that consent obtained by duress is inoperative. Striking illustrations of this are to be found in prosecutions for robbery and rape, in which it is not necessary to prove that the party injured resisted to the extreme end, but in which it is enough if the prosecution shows that submission was coerced by threats of life.2 In suits on contracts the same rule prevails. A party can set up as a valid defence to a suit on a contract, that it was agreed to by him under threats of great violence.3

1 A. L. R. L. 4, sec 32, see L. 3, sec 1, D. quod metus causa, and other citations given by Koch, sec 75.

2 Wh. Cr. L. 8th ed. sec 146, 577, 850.

3 1 Roll. Abr. 688 ; 1 Bl. Com. 131; Paxton v. Popham, 9 East, 421 ; Williams v. Bayley, L. R. 1 H. L. 218; Baker v. Morton, 12 Wal. 150 ; French v. Shoemaker, 14 Wal. 314; White-field v. Longfellow, 13 Me. 146 ; Wat-kins v. Baird, 6 Mass. 511 ; Lewis v. Bannister, 16 Gray, 500; McMahon v. Smith, 47 Conn. 221; Neilson v. McDonald, 6 Johns. Ch. 210, Stouffer v. Latshaw, 1 Watts, 167 ; Miller v. Miller, 68 Penn. St. 486; Reynolds v. Copeland, 71 Ind. 422 ; Seiber v. Price, 26 Mich. 518; Gist v. Frazier, 2 Litt. 118. Money, also, paid under duress may be recovered back. Infra, sec 730 et seg.; Oates v. Hudson, 6 Exch. 340; Motz v. Mitchell, 91 Penn. St. 114; Schulz v. Culbertson, 49 Wis. 122. On the subject of duress the Roman literature is very full. See Koch, op.

And courts of equity watch with extreme jealousy all contracts made by a party while under imprisonment; and, if there is any good ground to suspect oppression or imposition in such cases, they will set the contract aside.1 Circumstances, also, of extreme necessity and distress, though not accompanied by any direct restraint or duress, may, in like manner, so entirely overcome free agency as to justify the court in setting aside a contract made by a party, "on account of "some oppression, or fraudulent advantage, or imposition, attendant upon it."1