Sec 145

Duress, therefore, does not presuppose that the person acted on becomes a mere automaton. It is true that there may be, as has been just said, absolute duress. One man's hand may be used by another to pull a trigger, or by another he may be held back from doing something he is about to do. Action thus forced is without legal effect; a contract thus compelled is void. The great majority of the cases of duress, however, are those in which one man's will is influenced by fear to execute another man's purpose. Mere fear, it is true, will not have this effect. Multitudinous contracts, induced by fear, have been held valid; it is only when the fear is brought about by the threats of the party benefiting by the contract that invalidity may result.3 Duress and freedom, as is justly remarked by Savigny,4 are not incompatible. The speculative questions Distinction between "void" and "voidable."

12th ed. sec 239 ; Miller v. Miller, H Penn. St. 486 ; Harshaw v. Dobson, 64 N. G. 384; Thurman v. Burt, 53 111. 129.

1 Story, Eq. Jur. 12th ed. sec 239, citing Roy v. Beaufort, 2 Atk. 190; Nieholls v. Nicholls, 1 Atk. 409; Hin-ton v. Hinton, 2 Ves. 634; Falkner v. O'Brien, 2 B. & B. 214; Griffith v. Spratley, 1 Cox, 383; Underbill v. Horwood, 10 Ves. 219 ; Attorney Gen. v. Gothon, 2 Vera. 497. To same effect, see Smith v. Monteith, 13 M. & W. 427; Soule v. Bonney, 37 Me. 128; Tilley v. Damon, 11 Cush. 247.

2 See infra, sec 169.

3 Windscheit, Pandekt. sec 80.

4 Rom. Recht, iii. sec 114. Savig-ny's doctrine, that contracts made under coercion are to be regarded as "willed," and are, therefore, voidable and not void, has been criticised with much acuteness by subsequent German critics.-See Schliemann. Lehre von Zwange, 1861 ; Czylark in Ihering's Jahr. XIII. 1. Brinz (Pandkt. sec 320), while acquiescing in Savigny's position in respect to obligations that are purely voluntary, such as stipulations, holds that it does not apply in cases where a material causa justa is essential to the validity of a transaction. If in such involved do not touch practical jurisprudence any more than they touch practical life; in jurisprudence, in such cases, to follow Savigny's exposition, we have to deal with freedom only so far as it involves the capacity to choose between three possible conclusions: to do the thing which the threatening; party requires, to repel the violence threatened, or to submit to this violence. If the party assailed chooses the first of these alternatives he chooses it as much as if he chose one of the others, and there is a voluntary acceptance of the act on his part sufficient at least to make a prima, facie contract. This view is accepted by the Roman standards: "Tamen coactus volui" is the term applied in one striking passage; and in another1 we are told, "Si patre cogente ducit uxorem,quam non duceret, si sui arbitrii esset . . . maluisse hoc videtur." Contracts thus influenced are not, therefore, nullities of themselves. They are valid on their face; but at the same time they are assailable on grounds of public policy. For one man by coercion to wring a bargain from another is a wrong for which the law gives redress. The party injured is entitled either to defend on this ground a suit brought on the contract thus extorted, or to recover back the thing extorted from him in a distinct suit.-In our own law the same distinction is maintained. Physical compulsion precludes assent. A man whose hand is taken by another and placed by force on a paper no more assents to what the paper contains, thau an idiot assents to a paper to which he attaches his mark. There can be no ratification because there is nothing to ratify. On the other hand, an assent not under physical, but under moral compulsion, constitutes a contract prima facie valid. The contract, it is true, may be repudiated by showing duress.-But until repudiated and annulled by the proper court, it case metus comes in to prevent the weighing of causa, the transaction remains invalid. But it cannot be claimed that in the determination of causa the will does not act. If it does act, no matter under what compulsion, then the thing done is willed. It is open to be set aside for undue influence or coercion. In either case, however, it was consent that was unduly influenced or coerced,.

1 L. 21, 22, de vitu nupt. xxiii. 2.

2 See authorities at end of last sec-, tion.

1.97 binds; and repudiation is precluded by ratification at a time when the duress was removed.1.