When Appropriate, Duress May be a Defense Against the Enforcement of a Contract
When appropriate, in Illinois, Duress is sometimes used as a defense against the enforcement of a contract. To establish duress, it must be shown that the act or threat left the individual bereft of the quality of mind essential to the making of a contract. Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill.App.3d 720, 727 (2d Dist. 2003). The acts or threats complained of must be wrongful; however, the term “wrongful” is not limited to acts that are criminal, tortious, or in violation of a contractual duty, but extends to acts that are wrongful in a moral sense as well. Id.
Illinois courts have held that the test for duress is whether an act has left the individual bereft of the quality of mind essential to make a contract, which is an objective test. Illinois Jurisprudence, Commercial Law § 1:91. There must be such compulsion as to show that the execution of the contract was not the voluntary act of the maker and it must be present and operate at the time the instrument was executed. Id. The question of duress is one of fact in each particular case, to be determined upon consideration of the surrounding circumstances, such as age, capacity, situation and relation of the parties. Illinois Jurisprudence, Commercial Law § 1:91.
Moreover, Illinois courts have held that any wrongful threat that actually puts the victim in such fear as to act against his or her will constitutes duress. Illinois Jurisprudence, Commercial Law § 1:93. Thus, where the parties are not dealing at arm's length, but one of them is in a position to dictate, the courts may treat agreements that are influenced by threats of injury to, or the withholding of, property as made under duress. Id. And the threats of a party may constitute duress where their undoubted effect was to undermine the ability of another to refuse to execute an agreement. Id.
A contract executed under duress is not void, but is voidable at the option of the coerced party. Illinois Jurisprudence, Commercial Law § 1:92. Because duress requires that a party be deprived of free will and bereft of the quality of mind essential to make a contract, an agreement will not be voided if the plaintiff had an option or choice as to whether or not to do the thing or perform the act said to have been done under duress. Id. Mere advice, argument, or persuasion does not constitute duress if the individual acts freely in executing the questioned documents. Illinois Jurisprudence, Commercial Law § 1:93. The use or threatened use of civil proceedings to enforce a claim is not considered duress, where made in the honest belief that a good cause of action exists. Illinois Jurisprudence, Commercial Law § 1:94. Further, it is not duress for a party to a contract to act upon a plausible, even if uncertain, interpretation of its rights. Id.
A demand is not duress unless it is “wrongful” in the sense that it violates the law, a contract, or morality. Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 341 Ill.App.3d 438, 446 (4th Dist. 2003). Duress cannot be predicated upon a demand that is lawful or a threat to do something that a party has a legal right to do. Id. Further, a finding of duress is less likely if the party has the assistance of counsel and adequate time to consider the proposed contractual terms. Krilich v. American Nat. Bank and Trust Co. of Chicago, 334 Ill.App.3d 563, 540 (2 Dist. 2002).
A victim of duress who accepts the benefits flowing from the contract for any considerable length of time ratifies the contract. Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill.App.3d 720, 728 (2d Dist. 2003). Ratification results if the party who executed the contract under duress accepts the benefits flowing from it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to annul or void it. Illinois Jurisprudence, Commercial Law § 1:92.
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