Sec 152

There must be shown, in order to make out this defence, to have been a causal connection between the duress and the consent. The mere fact that a man is under duress does not avoid all promises made by him; it must be shown, to produce this avoidance, that the duress caused the promise.8 Duress, also, after the promise, will not avoid.3 But when the promise is produced by the duress, then, under the limitation above stated, the duress avoids the promise.

Sec 153

If a promise is extorted by duress, it makes no matter whether the duress was applied by the promisee, or by a third party. "In hac actione non quæritur, utrum is, qui convenitur, an alius metum fecit; sufficit enim hoc docere, metum sibi illatum, vel vim, etc."4 Hence duress by a stranger at the suggestion of the party benefited avoids a contract thus extorted.5 But the duress must have been used by the party applying it to procure the promise, and the promisee must knowingly avail himself of this means of extortion. It is no defence, therefore, so it has been held in the Roman law, that the promise sued upon was made in consideration of rescue from duress for which the promisee was in no sense responsible.6 Hence a false statement that other persons threaten a prosecution is not duress when it is not pretended that there is any authorization from such other persons.7

Sec 154

We have already seen8 that whether a promise extorted by duress is absolutely void, and incapable of ratification, or whether it is merely voidable, and hence open to ratification, depends upon whether consent was given. If there was no consent (e. g., when the party was in a stupor, or when his hand was by force made to sign a mark), then the whole transaction is a nullity. But where there is consent, this consent holds until avoided, which must be, in the Roman law, ope exceptionis.1 Hence, by this law, such consent is capable of ratification, which ratification relates back to the original promise. In those systems in which such promises are ipso jure null and void, they are incapable of ratification.2 Our own law follows in this respect the Roman, holding that while a paper signed under physical compulsion is a nullity, a promise made under duress is prima facie valid. To avoid its effect it must be repudiated by the promisor and annulled by the proper tribunal. And repudiation may be precluded by ratification at a time when the duress is removed. This ratification may be by accepting the fruits of the bargain as well as by express assumption of its burdens.3

Must be causal relation between the duress and the consent.

Person from whom duress proceeds Immaterial.

Such contracts may be ratified.

1 Infra, sec 486.

2 Westphal, metus turn tantum vitiat, si ab altero ideo incussus, ut contra-hatur, Koch, ii. 105. Silliman v. U. S., 101 U. S. 465 ; Shephard v. Watrous, 3 Caines, 166 ; Eddy v. Herrin, 17 Me. 338; Heaps v. Dunham, 95 111. 583.

3 Fulton v. Loftus, 63 N. C. 393.

4 L. 14, sec 3, D. eod. L. 9, sec 8, D. eod.

5 Keilw. 154 a.

6 L. 9, sec 1, in f. D. h. t. L. 34, sec 1, D. de donet. xxxix. 5 ; Pauli, sent. rec. Lib. v. T. 11, sec 6.

1 Fulton v. Hood, 34 Penn. St. 365.

8 Supra, sec 145.

1 L. 2 and 4 C. h. t.

2 Koch, op. cit. ii. 113.

3 Shepp. Touch. 61, 288; Parsons on Cont. i. 437; Matthews v. Baxter, L. R. 8 Ex. 132; Worcester v. Eaton, 13 Mass. 377 ; Montgomery v. Pickering,.

116 Mass. 227; Hassler v. Bitting, 40 Penn. St. 68; Veach v. Thompson, 15 Iowa, 380. For ratification in cases of undue influence, see infra, sec 168. That ratification is to be inferred from facts, see supra, sec 58 et seq.