Chapter 16-11 Duress

• Jurisdiction: United States

16-11 Duress

Duress is an avoidance defense to a contract action.⁸⁹ Generally, duress exists when a person threatens another in such a manner as to destroy the free will of the party against whom the threat was issued, thereby causing him to do what he would not otherwise have done.⁹⁰ Duress does not make a contract void, but rather makes a contract voidable by the party who experienced the duress.⁹¹

16-11:1 Elements

(1) The opposing party threatens to do something he has no legal right to do;⁹²

(2) The threat was of such a character as to destroy the free will of the party against whom it was issued and thereby overcome his will and cause him to do what he would not otherwise have done;⁹³

(3) The threatened injury was imminent;⁹⁴ and

(4) The party against whom the threat was issued had no immediate means of protection.⁹⁵

16-11:2 Other Substantive Issues

Generally, the activity must threaten physical violence or wrongful execution on property. However, an economic threat may constitute duress if the threatening party is the cause of the defendant's economic duress.⁹⁶ Additionally, the threat must be imminent so that the party against whom the duress is exerted does not presently have protection.⁹⁷ Therefore, if the party exerting the duress must go to the courts to enforce the threat, duress is ordinarily not present.⁹⁸

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Notes:

^[89] See Country Cupboard, Inc. v. Texstar Corp., 570 S.W.2d 70, 74 (Tex. Civ. App.—Dallas 1978, writ ref'd n.r.e.).

^[90] Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm'n App. 1924).

^[91] Country Cupboard, Inc. v. Texstar Corp., 570 S.W.2d 70, 74 (Tex. Civ. App.—Dallas 1978, writ ref'd n.r.e.).

^[92] Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm'n App. 1924).

^[93] Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm'n App. 1924).

^[94] Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm'n App. 1924).

^[95] Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm'n App. 1924).

^[96] First Tex. Sav. Ass'n of Dallas v. Dicker Ctr., 631 S.W.2d 179, 185-86 (Tex. App.—Tyler 1982, no writ).

^[97] See Tower Contracting Co., Inc. of Tex. v. Burden Bros., Inc., 482 S.W.2d 330, 336 (Tex. App.—Dallas 1972, writ ref'd n.r.e.).

^[98] Ward v. Scarborough, 236 S.W. 434, 437 (Tex. Comm'n App. 1922, judgm't adopted).