Business Contracts

The defect of duress is very rarely encountered. Like other defects of consent, duress (violence) is punishable by relative invalidity, with the ensuing consequences , and the victim can also sue for damages in tort. Pursuant to Article 1131, an action for invalidity on the grounds of duress is subject to the ordinary limitation period of five years, starting from the day when the duress ceased. 
 …

Duress

The defect of duress is very rarely encountered. Like other defects of consent, duress (violence) is punishable by relative invalidity, with the ensuing consequences , and the victim can also sue for damages in tort. Pursuant to Article 1131, an action for invalidity on the grounds of duress is subject to the ordinary limitation period of five years, starting from the day when the duress ceased. 

Morally reprehensible in the same way as fraud, this type of action can be brought by either party , although in practice it is more common for the seller to be the perpetrator. Article 1140 of the Civil Code defines duress as “when a party undertakes a contract under the pressure of a constraint which inspires in him or her the fear of exposing his or her person, fortune or those of his or her close relations to harm”. According to the Court of Cassation, duress, which may take the form of moral coercion, must be such as to deprive the party invoking it of his freely given consent, in order to justify the invalidation of the sale . The decisive nature of the duress is assessed in concreto, having regard to the persons and circumstances in which consent was given . Moral duress was thus established when, during a trade fair, several sales representatives joined forces to convince the victim, then aged 80 and “overwhelmed by the situation”, to buy a table and four chairs, for around EUR 5000 , by applying relentless pressure on her, using an aggressive sales method likely to significantly alter her freedom of choice and cause this person, already being treated with antidepressants, to become mentally confused .

Since the reform of contract law, which equates contractual dependence with duress, duress can also be economic. Article 1143 of the Civil Code states: “Duress also exists when a party, abusing the state of dependence in which his co-contracting party finds himself, obtains from him a commitment which he would not have entered into in the absence of such constraint, and derives from it a manifestly excessive advantage”. But only the abusive exploitation of a situation of dependence, made to take advantage of the dread of something directly threatening the legitimate interests of the person, can vitiate his or her consent on the grounds of duress. To establish such abusive exploitation, the courts must, on the one hand, identify the risk and the economic consequences which have had the effect of placing a party in a situation of dependence with regard to his co-contractor and, on the other hand, characterize the exploitation of the fear of the person invoking economic violence “of a harm threatening his or her legitimate interests” and which would have compelled that person to contract. Thus, an employee who has transferred his copyright in a dictionary to his employer is not entitled to have the transfer invalidated on the grounds of duress, unless he can show that his employer exploited his fear of being made redundant as part of a downsizing plan, which would have forced him to transfer his rights .  According to the Paris Court of Appeal, economic duress, a defect in consent, requires proof of an abuse of dependency that induces the victim contracting party to undertake a commitment that they would not otherwise have made and that creates a manifestly excessive advantage, whereas abuse of economic dependency, referred to in Article L. 420-2, para. 2, of the Commercial Code, requires proof not only of the existence of economic dependency but also of its abusive exploitation, insofar as it is likely to affect the functioning or structure of competition .

On the other hand, duress cannot result from the threat of legal action, unless it is “diverted from its purpose or when it is invoked or exercised to obtain a manifestly excessive advantage” . Thus, a buyer who, in order to force the seller to sign the promise to sell, threatened the latter with legal proceedings which he had agreed to renounce, then lodged a complaint against her for fraud and exerted such pressure that she had to undergo antidepressant treatment, was guilty of moral duress of such a nature as to vitiate her consent, justifying the invalidation of the sale .

Given its relative nature, invalidity can only be sought by the victim of duress, and the vitiated contract of sale can in principle be upheld, pursuant to Article 1182 of the Civil Code.

For a case of duress by the seller, see CA Toulouse, 16 May 2022, LawLex202300003628JBJ; for a case of duress by the buyer, see CA Cass. 3e civ., 12 June 2014, LawLex202300003435JBJ. 

Cass. 3e civ. 29 April 1998, LawLex202200001275JBJ.

See CA Toulouse, 16 May 2022, LawLex202300003628JBJ.

Cass, 1re civ, 3 April 2002, LawLex202000001879JBJ.

CA Paris, 17 January 2024, LawLex202400000539JBJ.

Cass. 3e civ, 12 June 2014, LawLex202300003435JBJ.

Business Contracts

137. Duress

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

137. Duress

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise