ABSTRACT
Duress is a strangely ill-defined concept. This lack of definition has hampered the clear development of the law of duress, especially as applied to contracts that are made as the result of duress. The essence of duress lies in the coercion, compulsion or constraint exercised upon the mind of a person in order to induce or with the consequence of causing that person to embark on a course of conduct – for the purposes of this study, to enter into a particular contract on the terms agreed. Such coercion may be referred to as “ pressure ” on the party coerced. 1 In H v H , 2 Karminski, J said that “ In the case of duress with regard to the marriage contract, as with regard to any other, it is obvious that there is an absence of a consenting will. ” 3 In Pao On v Lau Yiu Long , 4 Lord Scarman said that “ Duress, whatever form it takes, is a coercion of the will so as to vitiate consent ” and that the compulsion underlying duress “ had to be such that the party was deprived of ‘his freedom of exercising his will’ ”. 5 Such coercion may result in the complete overpowering of the victim’s intention, desire, interests or will, or it may result in the deflection of that will, causing that
1 In Williams v Bayley (1868) LR 1 HL 200, 212, Lord Cranworth, LC described duress as the “ doctrine of pressure ”. See generally Enonchong, Duress, Undue Influence and Unconscionable Dealing , (2nd revised ed., 2012).
