Since the free assent of the parties is essential to a valid contract, duress, either by imprisonment, threats, or other acts, by which the free will of the party is restrained and his consent induced, renders the contract voidable at the election of the injured party. Legal imprisonment, if not used for illegal purposes, does not constitute duress.
(Orig. Code 1863, § 2716; Code 1868, § 2710; Code 1873, § 2752; Code 1882, § 2752; Civil Code 1895, § 3670; Civil Code 1910, § 4255; Code 1933, § 20-503.)
Cross references.- General rules of pleading and requirement of setting forth duress as an affirmative defense, § 9-11-8.
JUDICIAL DECISIONSANALYSIS
Section essentially modified strictly defined doctrine of duress at common law. Whitt v. Blount, 124 Ga. 671, 53 S.E. 205 (1906).
Undue influence defined.
- Undue influence which overturns an otherwise legal contract is the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy one's free agency and constrain the person to do what the person would not have done if such control had not been exercised. Cobb v. Garner, 158 Ga. App. 110, 279 S.E.2d 280 (1981).
Contracts under duress voidable, not void.
- O.C.G.A. § 13-5-6 does not render an otherwise valid contract made under duress void, but merely voidable at the instance of the injured party. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Waiver and ratification generally.
- Where the execution of a contract is procured by duress, the person executing the contract may, after the removal of duress, waive the duress and ratify the contract. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Acceptance of contract benefits as waiver of duress claim.
- When plaintiff takes no action to disaffirm a contract after plaintiff's employment is terminated and, in effect, ratifies the contract by accepting and retaining benefits under the contract, plaintiff waives any subsequent claim that the contract was procured under duress. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Acts after removal of duress which amount to ratification.
- Accepting and retaining benefits arising from a contract executed under duress after removal of the duress, will result in a ratification of the contract. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Acquiescence in the contract after removal of the duress and an opportunity is afforded to avoid the contract will, under certain circumstances, amount to a ratification of the contract. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Admission of liability under a contract, after removal of the duress, amounts to a ratification of the contract. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Evidence of choice to disaffirm contract made under duress.
- Once the complaining party is relieved from the operation of the duress the complaining party is in a position either to disaffirm the party's contract or to allow the contract to stand undisturbed as the free and formal disposition of the party's rights. If the party's choice is to disaffirm, it might be evidenced by suit timely brought or by another action disclosing the party's purpose to those who would be affected. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
When seeking relief from alleged duress proper method is to bring suit in equity and applicable statute of limitations is seven years. Knight v. Department of Transp., 239 Ga. 368, 236 S.E.2d 826 (1977).
Sufficiency of plea to show duress.
- See Bond v. Kidd, 1 Ga. App. 798, 57 S.E. 944 (1907); Lucas v. Castelow, 8 Ga. App. 812, 70 S.E. 184 (1911); Lichtenstein v. Wilensky, 151 Ga. 353, 107 S.E. 49 (1921).
Cited in Bailey v. Devine, 123 Ga. 653, 51 S.E. 603, 107 Am. St. R. 153 (1905); Cromer v. Evett, 11 Ga. App. 654, 75 S.E. 1056 (1912); Epps v. Anderson, 28 Ga. App. 745, 113 S.E. 27 (1922); Habersham v. Merritt, 157 Ga. 695, 122 S.E. 37 (1924); Keller v. Levison, 165 Ga. 178, 140 S.E. 493 (1927); Davidson v. Citizens' Bank, 171 Ga. 81, 154 S.E. 775 (1930); Davison-Paxon Co. v. Walker, 174 Ga. 532, 163 S.E. 212 (1932); Louisville & N.R.R. v. Gattis, 180 Ga. 389, 178 S.E. 740 (1935); Mayor of Fort Valley v. Levin, 183 Ga. 837, 190 S.E. 14 (1937); Perryman v. State, 63 Ga. App. 819, 12 S.E.2d 388 (1940); McDaniel v. Bagby, 204 Ga. 750, 51 S.E.2d 805 (1949); Causey v. Matson, 215 Ga. 306, 110 S.E.2d 356 (1959); Hefner v. Hall, 223 Ga. 148, 154 S.E.2d 197 (1967); Jones v. Sheffield, 122 Ga. App. 574, 178 S.E.2d 299 (1970); Woods v. Wright, 163 Ga. App. 124, 292 S.E.2d 545 (1982); Fields v. Thompson, 164 Ga. App. 331, 297 S.E.2d 100 (1982); Ryder Truck Lines v. Goren Equip. Co., 576 F. Supp. 1348 (N.D. Ga. 1983); Bishop v. Westminster Schools, Inc., 196 Ga. App. 891, 397 S.E.2d 143 (1990); Families First v. Gooden, 211 Ga. App. 272, 439 S.E.2d 34 (1993); Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 497 S.E.2d 397 (1998); Stoudemire v. HSBC Bank USA, N.A., 333 Ga. App. 374, 776 S.E.2d 483 (2015).
What Constitutes Duress
Mere threats cannot constitute duress. Newman v. City Council, 42 Ga. App. 268, 155 S.E. 785 (1930).
Empty threat does not amount to duress. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944); Yearwood v. National Bank, 222 Ga. 709, 152 S.E.2d 360 (1966).
Threats to bring a civil suit do not constitute duress.- See Transamerica Consumer Receivable Funding, Inc. v. Warhawk Invs., Inc., 842 F. Supp. 536 (M.D. Ga. 1994).
Duress is coercion constraining action or inaction contrary to victim's will. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944).
Duress must come from without, and not from within; duress must be exerted by other person or that person's agent, and cannot be creation of mind of person claiming the person's will has been restrained by fear. King v. Lewis, 188 Ga. 594, 4 S.E.2d 464 (1939).
Crucial element of duress is wrongful act to create and take advantage of untenable situation. Chouinard v. Chouinard, 568 F.2d 430 (5th Cir. 1978).
Duress requires acts or conduct of opposite party, not merely necessities of purported victim. A-T-O, Inc. v. Stratton & Co., 486 F. Supp. 1323 (N.D. Ga. 1980).
Contract is voidable if undue or unjust advantage has been taken of person's economic necessity or distress to coerce the person into making agreement. However, duress claim of this nature must be based on acts or conduct of opposite party and not merely on necessities of purported victim. Chouinard v. Chouinard, 568 F.2d 430 (5th Cir. 1978).
Duress is a species of fraud in which compulsion in some form replaces deception in accomplishing injury, and, like fraud, constitutes a meritorious ground to set aside contract executed as result thereof. King v. Lewis, 188 Ga. 594, 4 S.E.2d 464 (1939); Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Threats must be sufficient to overcome mind and will of person of ordinary firmness. Williams v. Rentz Banking Co., 112 Ga. App. 384, 145 S.E.2d 256 (1965); Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Duress requires acts effecting subversion and substitution of party's will.
- Facts which are essential to constitute duress must be such as are sufficient to subvert will of party alleged to be under duress, and to substitute for will of another. Williams v. Rentz Banking Co., 112 Ga. App. 384, 145 S.E.2d 256 (1965).
Sophisticated businessperson who makes guaranty with advice of counsel does not do so under duress.- When the owner of a Chapter 11 debtor signed a personal guaranty of its debt, which included a waiver of defenses clause, in return for the withdrawal of a motion by a creditor for the appointment of a trustee, counsel for creditor may have been shrewd in filing the motion and negotiating the terms of the guaranty but there was no foul in cunning, and because the signer of the guaranty agreement was sophisticated in business matters and obtained advice of counsel before signing, the defense of duress was not available to void the contract. Abdulla v. Klosinski, F. Supp. 2d (S.D. Ga. Sept. 25, 2012).
Nature of acts or threats which constitute duress.
- Duress which will avoid contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce will of another, and actually inducing the other to do act contrary to the other's free will. Littlegreen v. Gardner, 208 Ga. 523, 67 S.E.2d 713 (1951); Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Duress consists in any illegal imprisonment, or legal imprisonment used for illegal purpose, or threats of bodily or other harm, or other means amounting to coercion or tending to coerce will of another, and actually inducing the other to do act contrary to the other's free will. Hazen v. Rich's, Inc., 137 Ga. App. 258, 223 S.E.2d 290 (1976).
Nature of threat of bodily harm which constitutes duress.
- Threats of bodily harm, sufficient to overcome mind and will of person of ordinary firmness, and made for purpose of coercing and which do actually coerce another into executing promissory note, constitute duress and render such transaction voidable. King v. Lewis, 188 Ga. 594, 4 S.E.2d 464 (1939); Calhoun v. Dowdy, 207 Ga. 584, 63 S.E.2d 373 (1951).
"Business compulsion" or "economic duress" involves the taking of undue or unjust advantage of a person's economic necessity or distress to coerce the person into making a contract and is also recognized as a contractual defense if it is based upon acts or conducts of the opposite party which are wrongful or unlawful. Charter Medical Mgt. Co. v. Ware Manor, Inc., 159 Ga. App. 378, 283 S.E.2d 330 (1981).
Neither reluctance, disadvantageous terms, unequal bargaining power, nor unfairness constitutes duress.
- One may not void a contract on grounds of duress merely because one entered into the contract with reluctance, the contract is very disadvantageous to that person, the bargaining power of the parties was unequal, or there was some unfairness in the negotiations preceding the agreement. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981); Miller, Stevenson & Steinichen, Inc. v. Fayette County, 190 Ga. App. 777, 380 S.E.2d 73 (1989), aff'd, 196 Ga. App. 129, 395 S.E.2d 381 (1990).
Economic distress does not constitute legal duress under the standard of O.C.G.A. § 13-5-6. Ackerman v. First Nat'l Bank, 239 Ga. App. 304, 521 S.E.2d 221 (1999).
Stress the debtor felt fell outside the scope of legal "duress" because there was no evidence of wrongful or unlawful conduct, imprisonment, threats, or any other acts of that nature, and the creditor driving a hard bargain and insisting that the debtor, which owed $6,000,000, accept certain terms, conditions, and boilerplate material of its standard commercial loan documents could have hardly been classified as wrongful or illegal conduct. In re Chatham Parkway Self Storage, LLC, 507 Bankr. 13 (Bankr. S.D. Ga. 2014).
Contract voidable when undue or unjust advantage is taken of one's economic necessity or distress to coerce one into making agreement. A-T-O, Inc. v. Stratton & Co., 486 F. Supp. 1323 (N.D. Ga. 1980).
Detention of another's chattels under proper circumstances might be sufficient duress to avoid a contract. Charter Medical Mgt. Co. v. Ware Manor, Inc., 159 Ga. App. 378, 283 S.E.2d 330 (1981).
Seizure and retention of property until owner executes promissory note constitutes duress.
- Seizure of property by force and holding the property until the owner executes promissory notes for the property's release without semblance of consideration is a species of duress, and court of equity will relieve maker by preventing their collection. Barnett v. Central Line of Boats, 51 Ga. 439 (1874).
Unlawful detention of another's goods under oppressive circumstances, or their threatened detention, will avoid contract on ground of duress, for reason that in such cases there is nothing but form of agreement, without its substance. A-T-O, Inc. v. Stratton & Co., 486 F. Supp. 1323 (N.D. Ga. 1980).
Act must be wrongful to constitute duress, and it is not duress to threaten to do what one has a legal right to do. Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652, 284 S.E.2d 667 (1981).
Threat of losing a job or fear of such loss is not duress which will void a contract. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981).
Threat made without present apparent intent and ability to carry it out, not duress.
- Mere empty threats in absence of present apparent intent and ability to carry such threats into execution are insufficient to constitute duress that will void a deed. Calhoun v. Dowdy, 207 Ga. 584, 63 S.E.2d 373 (1951).
It is not sufficient to allege that note was executed because of empty threat made by another; to sustain charge of duress it is necessary to show that there was apparent intention and ability to execute threat that would have coerced action or inaction contrary to victim's will. Littlegreen v. Gardner, 208 Ga. 523, 67 S.E.2d 713 (1951).
Mere threats or empty threats, when there is no apparent intention and ability to execute the threats, are not sufficient to constitute duress. Williams v. Rentz Banking Co., 112 Ga. App. 384, 145 S.E.2d 256 (1965).
No duress absent reasonable apprehension that threat will be carried out.
- While threat by husband to abandon his wife unless she signs note may in some instances amount to duress which will relieve her of liability on note to holder with notice, where circumstances show that wife had no reasonable apprehension of threat being carried into execution, bare making of it will not be such duress as to render note invalid. Dorsey v. Bryans, 143 Ga. 186, 84 S.E. 467, 1917A Ann. Cas. 172 (1915).
Lawful confinement in penitentiary not duress.
- Duress is not shown when lack of choice results not from unlawful pressure but from lawful confinement in penitentiary. Price v. Arrendale, 119 Ga. App. 589, 168 S.E.2d 193 (1969).
Mere fact of imprisonment alone could not constitute duress, when defendant's imprisonment was not the result of any action on the part of plaintiff to effect execution of the note. Crockett v. Shafer, 166 Ga. App. 453, 304 S.E.2d 405 (1983).
An attorney's refusal to release file material to a former client prior to settlement of a fee dispute cannot constitute duress sufficient to permit the former client to avoid the client's obligations pursuant to a promissory note, the execution of which is made a prerequisite for the return of the file material, since the attorney has a statutory right to retain the former client's file materials in the attorney's possession until the attorney's fee claim is satisfied or the attorney is otherwise directed by court order. Crockett v. Shafer, 166 Ga. App. 453, 304 S.E.2d 405 (1983).
Note of putative father to settle bastardy proceedings not voidable because given while under arrest.
- Note given by putative father to settle bastardy proceeding not void (now voidable), for duress merely because given while under arrest under bastardy proceedings. Jones v. Peterson, 117 Ga. 58, 43 S.E. 417 (1903); Gresham v. Hewatt, 2 Ga. App. 71, 58 S.E. 309 (1907).
Lack of choice as to where and by whom surgery will be performed, not duress.
- Lack of choice as to where and by whom a surgical operation will be performed does not ordinarily constitute duress so as to render voidable an operative permit signed by the patient. Price v. Arrendale, 119 Ga. App. 589, 168 S.E.2d 193 (1969).
Necessary elements to defeat of recovery of payee for duress produced by third party.
- In order for married woman to defeat recovery by payee on promissory note made by her, upon ground that her signature thereto was procured by fraud and duress of her husband, she must not only show that such was the fact, but must also show that payee of note was either party to such fraud and duress, or that payee had knowledge thereof. Burgess v. Torrence, 23 Ga. App. 193, 98 S.E. 170 (1919).
Settlement of insurance claim.
- Insured's claim that the insured was unduly coerced into settling the insured's claim because of physical and mental duress brought on by insurer's refusal to pay benefits, weariness of filing lawsuits against insurer, and compelling compromising offers to settle, pressure to pay medical bills by doctors, and insurer's telling the insured the contract was being drawn up for settlement under P.I.P coverage were insufficient, as a matter of law, to raise a jury question as to whether the release is voidable. Bailey v. Horace Mann Ins. Co., 207 Ga. App. 633, 428 S.E.2d 604 (1993).
Threats of Prosecution or Imprisonment
Threatened prosecution must be for act either criminal or which party threatened thought was criminal. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944).
Threats of criminal prosecution before warrant issued or proceedings commenced, do not constitute duress. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944); Yearwood v. National Bank, 222 Ga. 709, 152 S.E.2d 360 (1966).
Absent imminent or immediate danger of prosecution, threat to prosecute does not constitute duress.
- In absence of proof that child was in imminent or immediate danger of prosecution or that the child would in fact be prosecuted if endorsement was not made, statement to endorser that, if endorser failed to endorse, the endorser's child would be liable to prosecution did not amount to threat or show duress. Augusta Motor Sales Co. v. King, 33 Ga. App. 433, 126 S.E. 866 (1925).
It is not duress to bring or threaten to bring civil suit. Chouinard v. Chouinard, 568 F.2d 430 (5th Cir. 1978).
Parent may avoid contract given under duress of imprisonment of a child. Bailey v. Devine, 123 Ga. 653, 51 S.E. 603, 107 Am. St. R. 153 (1905); Colclough v. Bank of Penfield, 150 Ga. 318, 103 S.E. 490 (1920); Bank of Penfield v. Colclough, 154 Ga. 222, 114 S.E. 33 (1922).
Grantor may avoid conveyance induced by threat to prosecute child, although other consideration was given.
- Specific performance of deed will not be decreed against a father, even where threats to prosecute the father's son were not entire consideration for such contract, but part of consideration was money loaned. Swint v. Carr, 76 Ga. 322, 2 Am. St. R. 44 (1886).
Suggestion of criminal responsibility.
- The plaintiff did not improperly procure a promissory note under duress, notwithstanding the defendant's assertion that the plaintiff's attorney threatened the defendant with criminal prosecution for writing bad checks, since the plaintiff's attorney only intimated that the defendant could have criminal responsibility for writing bad checks. Gouldstone v. Life Investors Ins. Co., 236 Ga. App. 813, 514 S.E.2d 54 (1999).
Waiver of defense.
- Even if acts could otherwise have been construed as sufficient duress to void a note, reliance upon the defense of duress may be waived. Frame v. Booth, Wade & Campbell, 238 Ga. App. 428, 519 S.E.2d 237 (1999).
In an action on a note, where defendant was a sophisticated businessman who had consulted with counsel of choice for three months before signing the note, even if plaintiff's actions constituted economic duress, defendant waived any reliance upon this defense. Frame v. Booth, Wade & Campbell, 238 Ga. App. 428, 519 S.E.2d 237 (1999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Contracts, § 153. 25 Am. Jur. 2d, Duress and Undue Influence, §§ 1, 3 et seq., 24, 229.
8C Am. Jur. Pleading and Practice Forms, Duress and Undue Influence, § 1.
C.J.S.- 17 C.J.S., Contracts, § 168 et seq.
ALR.
- Validity of contract executed under duress exercised by third person, 4 A.L.R. 864; 62 A.L.R. 1477.
Validity of separation agreement as affected by fraud, coercion, unfairness, or mistake, 5 A.L.R. 823.
Innocence of the person threatened as affecting the rights or remedies in respect of contracts made, or money paid, to prevent or suppress a criminal prosecution, 17 A.L.R. 325.
Seller's concealment of ownership of other property inducing exclusion of same from contract as actionable fraud, 26 A.L.R. 990.
Validity of contract for repayment of embezzled money, 32 A.L.R. 422.
Threat of withdrawal or withholding of banking accommodation as duress, 33 A.L.R. 127.
Duress by company furnishing power or the like, 34 A.L.R. 185.
Duress in insisting upon release before delivery of property where parties are not on equal footing, 70 A.L.R. 711.
Validity, construction, applicability, and effect of provision in real estate mortgage regarding payment of taxes or assessments by mortgagee, 74 A.L.R. 506.
Doctrine of "business compulsion", 79 A.L.R. 655.
Undue influence by third person in which immediate beneficiary did not participate, 96 A.L.R. 613.
What amounts to acceptance by owner of work done under contract for construction or repair of building which will support a recovery on quantum meruit, 107 A.L.R. 1411.
Contract in settlement of labor dispute as avoidable upon ground of duress, 145 A.L.R. 1171.
Right of action for fraud, duress, or the like, causing instant plaintiff to release or compromise a cause of action against third person, 58 A.L.R.2d 500.
Ratification of contract voidable for duress, 77 A.L.R.2d 426.
What constitutes "duress" in obtaining parent's consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527.
Economic duress or business compulsion in execution of promissory note, 79 A.L.R.3d 598.
Validity of release from civil liability where release is executed by person while incarcerated, 86 A.L.R.3d 1230.
Liability for interference with at will business relationship, 5 A.L.R.4th 9.
Liability of third party for interference with prospective contractual relationship between two other parties, 6 A.L.R.4th 195.
Refusal to pay debt as economic duress or business compulsion avoiding compromise or release, 9 A.L.R.4th 942.
Economic duress or business compulsion in execution of contract for sale of real property, 12 A.L.R.4th 1262.
What constitutes duress by employer or former employer vitiating employee's release of employer from claims arising out of employment, 30 A.L.R.4th 294.