CHAPTER XI. DURESS AND UNDUE INFLUENCE. voidable IF the consent of one party to a contract is obtained by Contract the other under such circumstances that the consent is not if consent free, the contract is voidable at the option of the party not free. whose consent is so obtained. It is quite clear that it is not merely void (a). The transaction might indeed be void if the party were under actual physical constraint, as if his hand were forcibly guided to sign his name; or perhaps if he were so prostrated by fear as not to know what he was doing (b); but this would be not because his consent was not free, but because there was no consent at all. What then are the circumstances which are held by English courts to exclude freedom of consent? The treatment of this question has at common law been singularly narrow and in equity singularly comprehensive. I. Duress at Common Law. At common law the coercion which will be a sufficient The common law cause for avoiding a contract may consist in duress or doctrine of menace; that is, either in actual compulsion or in the Duress. threat of it. In modern books the term duress is used to include both species. It is said that there must be some threatening of life or member, or of imprisonment, or some (a) Co. 2 Inst. 482, and 2nd resolution in Whelpdale's ca. 5 Rep. 119. (b) Savigny, Syst. 3. 109. But the analogy of Matthews v. Baxter, L. R. 8 Ex. 132, is against this. In a case the threat something unlawful. imprisonment or beating itself. Threatening to destroy or detain, or actually detaining property, does not amount to duress (a). And this applies to agreements not under seal as well as to deeds (b). The reason appears to be that the detainer is a wrong of itself, for which there is an appropriate remedy. Should the party choose to make terms instead of pursuing his rights (at all events when there is nothing to prevent him from so doing) he cannot afterwards turn round and complain that the terms were forced upon him (c). "It must be a threatening, beating, or imprisonment of the party himself that doth make the deed, or his wife" (a) or (it seems) parent or child (d). And a threat of imprisonment is not duress unless the imof menace prisonment would be unlawful. This is illustrated by two must be of rather curious modern cases in both of which the party's consent was determined by the fear of confinement in a lunatic asylum. In Cumming v. Ince (e) the plaintiff had been taken to a lunatic asylum and deprived of the title deeds of certain property claimed by her. Proceedings were commenced under a commission of lunacy, but stayed on the terms of an arrangement signed by counsel on both sides, under which the deeds were to be deposited in certain custody. The plaintiff afterwards repudiated this arrangement and brought detinue for the deeds. On an issue directed to try the right to the possession of the deeds as between herself and the other parties the Court held that in any view the defendants were wrong. For if their own proceedings under the commission were justified, they could not say the plaintiff was competent to bind herself, and if not, the agreement was obtained by the fear of a merely unlawful imprisonment and therefore voidable on the ground of duress. And it made no difference that the plaintiff's counsel was party to the arrangement. His (a) Shepp. Touch. 61. (b) Atlee v. Backhouse, 3 M. & W. 633, Skeate v. Beale, 11 A. & E. 983. (c) See Silliman v. United States, 11 Otto (101 U. S.) 465. (d) Ro. Ab. 1. 687, pl. 5; Bac. Ab. Duress (B). (e) 11 Q. B. 112, 17 L. J. Q. B. 105. 1 assent must be considered as enforced by the same duress : for as her agent he might well have feared for her the same evils that she feared for herself. In Biffin v. Bignell (a), on the other hand, the defendant was sued for necessaries supplied to his wife. She had been in a lunatic asylum under treatment for delirium tremens, and on her discharge the husband promised her 12s. a week to live apart from him, adding that if she would not he would send her to another asylum. The wife was accordingly living apart from the husband under this agreement. It was held that her consent to it was not obtained by duress, for under these circumstances "the threat, if any, was not of anything contrary to law, at least not so to be understood": consequently the presumption of authority to pledge the husband's credit was effectually excluded, and the plaintiff could not recover (b). circum compulsion can recover able back. The narrowness of the common law doctrines above Money stated is considerably mitigated in practice, for when paid under money has been paid under circumstances of practical stances of compulsion, though not amounting to duress, it generally be recovered back. This is so when the payment is made to obtain the possession of property wrongfully detained (c); and the property need not be goods for which the owner has an immediate pressing necessity, nor need the claim of the party detaining them be manifestly groundless, to make the payment for this purpose involuntary in contemplation of law (d). So it is where excessive fees are taken under colour of office, though it be usual to pay them (e); or where an excessive charge for the performance of a duty is paid under protest (f). The person who actually receives the money may properly be sued, (a) 7 H. & N. 877, 31 L. J. Ex. 189. (b) Qu. whether in any case he could have recovered without showing that the wife had repudiated the arrangement. (c) Wakefield v. Newbon, 6 Q. B. 276, 280, 13 L. J. Q. B. 258. (d) Shaw v. Woodcock,5 B. & C.73. (e) Dew v. Parsons, 2 B. & Ald. 562; Steele v. Williams, 8 Ex. 625, 22 L. J. Ex. 225. (f) Parker v. G. W. Ry. Co. 7 M. & Gr. 253, 292. And see other authorities collected in notes to Marriott v. Hampton, 2 Sm. L. C. of coercion in itself but of failure of tion. though he receive it only as an agent (a). The case of one creditor exacting a fraudulent preference from a debtor as the price of his assent to a composition (b) is to a certain But on the extent analogous. But in all these cases the foundation ground not of the right to recover back the money is not the involuntary character of the payment in itself, but the fact that the party receiving it did no more than he was bound to considera- do already, or something for which it was unlawful to take money if he chose to do it, though he had his choice in the first instance. Such payments are thus regarded as made without consideration. The legal effect of their being practically involuntary, though important, comes in the second place; the circumstances explain and excuse the conduct of the party making the payment. Similarly in the kindred case of a payment under mistake the actual foundation of the right is a failure of consideration, and ignorance of material facts accounts for the payment having been made. The common principle is that if a man chooses to give away his money, or to take his chance whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise or that he really had no choice. The difference between the right to recover money back under circumstances of this kind and the right to rescind a contract on the ground of coercion is further shown by this, that an excessive payment is not the less recoverable if both parties honestly supposed it to be the proper payment (c). We therefore dwell no farther on this topic, but proceed to consider the more extensive doctrines of equity. The equitable doctrine II. The equitable doctrine of Undue Influence. In equity there is no rule defining inflexibly what kind or amount of compulsion shall be sufficient ground for (a) Steele v. Williams, supra. Ex. 362. Supra, Ch. VI, p. 353. (c) Dew v. Parsons, 2 B. & Ald. 562. avoiding a transaction, whether by way of agreement or by of Undue way of gift. The question to be decided in each case is Influence. whether the party was a free and voluntary agent (a). Any influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the transaction, and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by courts of equity to be undue influence, and is a ground for setting aside the act procured by its employment. : of the influence in detail relation of esta The principle applies to every case where influence is Generality acquired and abused, where confidence is reposed and principle. betrayed" (b). And if it is once established that a person Exercise of who stands in a position of commanding influence towards need not another has obtained an advantage from him while in that be proved position, it will be presumed, in the absence of rebutting when proof, that the advantage was obtained by means of that habitual influence and it is not necessary for the party complaining influence to show the precise manner in which the influence was blished. exerted. Indeed one chief object of the rules which will presently be discussed is to prevent those who unduly obtain benefits from persons under their dominion from making themselves safe by the secrecy of the particular transaction (c). It is very possible that the circumstances would in many such cases, if they could be fully brought out, amount to proof of actual compulsion or fraud; so that it may perhaps be said that undue influence, as the term is used in courts of equity, means an influence in the nature of compulsion or fraud, the exercise of which in the particular instance to determine the will of the one party to the advantage of the other is not specifically proved, but is inferred from an existing relation of dominion on the one part and submission on the other (d). Given a position of (a) Williams v. Bayley, L. R. 1 H. L. 200, 210. (b) Per Lord Kingsdown, Smith v. Kay, 7 H. L. C. at p. 779. (c) See Dent v. Bennett, 4 My. & Cr. at p. 277. (d) In Boyse v. Rossborough, 6 H. L. C. at p. 48, it is said that, |