the proposed contract sufficient to indicate a failure to agree could be pled in order to argue that no contract existed to begin with.

The DCFR provisions represent a reasonable attempt to reach a panEuropean consensus on the subject of the proper analysis of error. However, as a compromise which culls elements from a number of trad­ itions, the principled approach to error suggested above does not clearly shine through the DCFR provisions.

9.  Extortion in the formation of contract

If contract is a voluntary exercise of the parties’ free will and consent, then it would seem to follow that a contract which has been extorted262 or coerced by B from A as a result of improper pressure applied by B (or under ‘duress’, as Common lawyers would say) is not a valid contract because it is not the result of an exercise of A’s free will. That, however, would be to simplify the question of extortion in a way which ignores some difficult questions. Chief among those questions which are of relevance to the idea of promise and contract is the question of whether, where extortion is present, there is deemed to be an exercise of the victim’s will or not. A party who chooses to give in to extortion rather than to resist the pressure exerted on him to contract, might be said to have exercised his will to contract. On such a view, he has consented to the contract, albeit that his consent might be said to be distorted, because he has exercised his will in a way which he perceives will avoid the undesirable consequences threatened. He has, to put it colloquially, chosen the lesser of two evils. Such a view was adopted by some members of the natural law school, including Molina,263 Lessius264 and Grotius,265 though they recognised that the prima facie valid contracts formed as a result of extortion were able to be avoided on account of the coercion used to achieve them.266 This

262The term extortion is susceptible to a number of meanings, but in a broad sense it signifies the obtaining of something from another by improper means in such a way that sufficient fear is created in the victim to persuade him to acquiesce in the demand made of him.

265Grotius, De jure belli ac pacis, II.xi.7. Pufendorf took the slightly different line that, though coerced consent was still given voluntarily, it did not give rise to any obligation: De jure naturae et gentium, III.vii.10–14.

266Though whether such a contract ought to be avoided is another matter: Adam Smith took the view that, even if a promise had been coerced from someone by a highwayman, breach of such a promise would involve some ignominy, as such a breach would be ‘at least a departure from the highest and noblest maxims of magnanimity and honour. A brave man ought to die, rather than make a promise which he can neither keep without folly, nor violate without ignominy’ (Smith, Theory of Moral Sentiments, vii.4).

view is also largely that of modern legal systems, as will be seen below. An alternative view is that to call extorted consent valid consent distorts the idea of free will: consent made under improper pressure should be seen as not freely given, and thus as no consent at all.267 As will be seen, whether the will is seen as overborne or merely as tainted as a result of extortion, the continuing relevance of a will-based analysis of the victim’s position is becoming somewhat eclipsed by the rise of solutions focusing on the objectively objectionable conduct of the extorting party regardless of the effect it has on the vicim’s promissory intent.

It is important to appreciate that, where there is no improper pressure exerted upon a party to contract, then the question of extortion does not arise. In opposition to this understanding, Fried has suggested that cases where, in emergency circumstances, people have to contract at high prices should also be seen as instances of duress.268 Yet this suggestion surely distorts the idea of duress, given that no pressure is involved in such cases, merely a failure on the part of the exploiting party to behave in a just fashion. If therefore such cases are objectionable, they should not be seen as such for reasons of duress but for some other reason. Indeed, as discussed below, the rise of doctrines such as undue influence have located the objectionable element in many transactions not in the effect upon the will of the weaker party, but in the undesirable nature of the conduct of the other party.

An appreciation of the position adopted by modern legal systems in relation to extortion requires an understanding of the historical development of the law. In this regard, one must look to Roman law, to the natural law idea of the just exchange, and to the subsequent eclipse of earlier attitudes through the rise of the idea of the will. In early Roman law, there was little one could do to attack transactions allegedly affected by compulsion.269 In the classical period, however, the law developed through a formula Octaviana in the prateorian edict aimed at recovery of what had been given under force and/or fear (per vim et/aut metum),270 and through the praetorian edictum perpetuum of Hadrian that the praetor would not

267Other theoretical questions have to be addressed, including what amounts to ‘improper’ or ‘unlawful’ pressure, and whether there should be a presumption that such pressure has been operative in cases where it is present, but, as these questions are of less relevance to the present discussion, they are not considered in any detail in the main text.

268Fried, Contract as Promise, p. 110.

269Du Plessis, Compulsion and Restitution, pp. 5–6.

270It is unclear whether vis et metus or vis aut metus was the prevailing doctrine: there are references in Ciceronian texts to each expression (Verrine Orations II 3.65.152 and Ad Quint. fratr. 1.1.7.21).

uphold what was done in consequence of fear (quod metus causa gestum erit).271 Since Roman times there has been scholarly disagreement as to whether the idea of vis et metus indicated a single doctrine describing the act of the active party and the related effect upon the passive party, or whether it denotes two separate triggers for the doctrine (force or fear), a debate which is unlikely to be resolved given the lack of textual corroboration for one view over the other. In the medieval period, the debate was conducted by reference to terminology developed to differentiate the degree of vis (force) which might be operative, whether vis absoluta (that is, bodily force which completely negated the will) or the lesser vis compulsiva (lesser force which merely bent the will of the victim, but did not overcome it, a threat of force being an example of such).272 The differing views reflected a division between whether extortion was seen as denoting an absence of the will (in which case there would be no contract) or merely a bending of the will (in which case there would be a voidable contract).

A related but distinct approach to the problem of oppressive conduct adopted by late Roman law is seen in a text from the Codex273 which deals with a specific type of exploitation in the contract of sale, and permits an owner of land who had sold his land for less than half its true value to rescind the contract. Though the text is very specific, it clearly embodies a principle of exploitation, as well as an idea of a ‘just price’ (iustum pretium), which was capable of extension to other circumstances. Such an extension occurred in medieval jurisprudence, such that what developed came to be known as the doctrine of laesio enormis.274 This medieval doctrine offered protection in cases of sale to buyers as well as sellers, and was extended to other types of contract, though it continued to be applied by reference to the somewhat arbitrary trigger of half the just price. The doctrine flourished because of the Aristotelian concept of commutative justice275 and the Thomist stress on the idea of the just price.276

With the eclipse of natural law and the rise of the concept of the will, came a reticence on the part of the courts to enquire into the justice or

271See du Plessis, Compulsion and Restitution, pp. 6–13.

272On the distinction see Hartkamp, Der Zwang in römischen Privatrecht, pp. 3 ff. For the relevant medieval debate, see Azo, Summa, in C. 2,19 (20) de his quae vi metusve causa gesta sunt, § in primis, 38; Glossa ordinaria, gl. vi atroci ad D. 4.2.1, gl. non videor and per vim ad D. 4.2.9 pr.; Baldus, Commentaria super Decretalibus, in c. quae causa, X, de his quae vi metusve causa fiunt, n. 6–7, f.171rb.

otherwise of the contract price. This naturally led, in time, to the supersession of the doctrine of laesio enormis. It was not incorporated into the BGB and it was statutorily abolished in South Africa.277 It did, however, persist in muted form in both French278 and Scots law.279 Instead, the law was left with a belief in the importance of a free exchange of consents and the related idea of extortion embodied in the concept of vis et metus: where such free consent was absent, as a result of extortion by another, the transaction affected might be declared invalid (though whether void, as one might expect if there were no free consent, or voidable, is a matter of jurisdictional dispute).

(a)  English law

Early protection against duress in English law was piecemeal, and lay largely in Chancery’s protection against imprisonment and threats of serious physical injury as means of procuring a contract. Such behaviour was seen as undermining consent and overbearing the will.280 Such an effect was not presumed from the mere force, however, but had, if challenged, to be demonstrated.281

However, it was not until the second half of the nineteenth century (around the time of the fusing of the legal and equitable jurisdictions) that cases of duress came to be treated consistently and conceptually as such. Published in 1867, Leake’s Elements of Contract Law was the first English work to deal systematically with the subject, Leake describing the circumstances of duress as being ‘where one of the parties to the agreement was induced to consent by fear and intimidation, imposed by the violence or threats of the other party’.282 The presence of the elements of both vis and metus in this statement may be noted, though the Roman terminology is not used. The effect was that the innocent party might avoid the contract, the will not being conceived of as entirely absent, as in cases of mistake or insanity.

Though such cases of duress might be explained by reference to the will theory (the will being compromised by the threats), it has been observed that historically there was in fact a tendency to explain the reasons given for relief in terms of public policy (on the basis that a man should not be

277General Law Amendment Act 1952, s. 25.

278Where the doctrine is, as in Roman law, restricted to the case of a sale of land: see Code civil Arts. 1118, 1674 (the loss must be greater than 7/12ths of the value of the land).