ABSTRACT
IN the same way as the contract by mutual consent sprangfrom the ritual and the real contracts, so in turn did a newform begin to grow out of the consensual. This was the just contract, objective and equitable. Its existence was revealed when the rule appeared whereby the contract is null and void when one of the parties has given his consent only under pressure of obvious constraint. The society declines to approve a declaration of will which has been got only under duress. How does this come about? We have seen how slight the foundation is for attributing the legal consequences of constraint to the fact that it suppresses the free will of the agent. Should this word be taken in its metaphysical sense? Then, if man is a free agent, he is free to resist every kind of pressure exerted on him; his freedom remains unimpaired whatever the duress he may be exposed to. Is the meaning of an act of free will simply a spontaneous act and are we to understand that consent implies that the will in consenting does so spontaneously? How often it happens that we consent because we are tied by circumstances-compelled by them, without any option of choice. And yet, when it is things and not persons that exert this constraint over us, a contract made in these circumstances is binding. Under the pressure of illness, I have to call in a certain doctor whose fees are very high: I am just as much bound to accept them as if I had a pistol at my head. We might quote many other instances. There is always constraint in any acts we carry out and in any consent we give, for they are never exactly in line with our wishes. When we say contract we mean concessions or sacrifices made to avoid more serious ones. In this respect there are only differences of degree in the form that contracts take.
