"DURESS" UNDER ENGLISH LAW
ATLEE V. BACKHOUSE, (1838) 3 M. &'W. 633;
Under common law duress consists in actual violence or threat of violence to a person.
It only includes fear of loss to life or bodily harm including imprisonment, but not a threat of damage to good.
The threat must be to do something illegal, i.e., to commit a tort or a crime.
There is nothing wrong in threat to prosecute a person for an offence, or to sue him for a tort committed by him,although threatening illegal detention would be duress.
Moreover, duress must be directed against a party to the contract, or his wife, child, parent or other near relative,and also caused by the party to the contract, or within his knowledge.
THREAT TO GOODS IS NO DURESS
The Common Law recognises only a threat to man's person and not to his goods to constitute duress. This is different from Indian law where section 15 of the Indian Contract Act recognises unlawful detention, or a threat to detain property as coercion.
SKEATE V. BEALE. [(1840) 11 A. & E. 983.]
a landlord threatened to sell his tenant's goods, having a distress of £ 19-10 sh. against the tenant for rent.
The landlord withdrew this distress in exchange of the tenant paying £ 3-7 sh.-6d, immediately and promising topay the remaining amount of £ 16-2sh.-6d within a month.
In an action by the landlord to recover the sum of 16 pounds-2sh.- 6d,from the tenant, the tenant pleaded that this promise had been obtained under duress by threatening sale of his property in so far as the distress was wrongful.
The tenant's plea was rejected and he was made to pay the amount in accordance with the promise because threatregarding goods cannot constitute duress.
In India, in case of coercion not only the contract is voidable under section 19, but if some money has been paid orgoods delivered by a party to the contract under coercion, the same is recoverable under
SECTION 72.
"A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."
ILLUSTRATION (B) TO SEC. 72.
A railway company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive.
DIFFERENCE BETWEEN COERCION AND DURESS
1. Coercion in India means committing or threatening to commit an act forbidden by the Indian Penal Code.Duress, under Common Law, consists in actual violence or threat of violence to a person. It includes doing of an illegal act against a person, whether it be a crime or a tort.Thus, unlike coercion, duress is not confined to unlawful acts forbidden by any specific penal law, like theIndian Penal Code in India.
2. In India, coercion can also be there by detaining or threatening to detain any property. In other words, in coercion, an act may be directed against a person or his property. In England, duress is constituted by acts or threats against the person of a man and not against his property.
3. In India, coercion may proceed from a person who is not a party to the contract, and it may also be directed againsta person who, again, may be a stranger to the contract. In England, duress should proceed from a party to the contract and is also directed against the party to the contract himself, or his wife, parent, child, or other near relative.
