allowed to profit from his wrongs).283 Still, it is not unheard of for modern courts to use the language of the will in relation to duress. Thus, for instance, Lord Simon of Glaisdale said of duress that it ‘deflects without destroying, the will of one of the contracting parties’,284 thereby offering an explanation of why the effect is that of voidability rather than voidness. To similar effect, Lord Scarman stated that the ‘classic case of duress is, however, not the lack of will to submit but the victim’s intentional submission arising from the realisation that there is no practical choice open to him’.285

From the late 1970s, the English courts began to accept that duress might be constituted by more than false imprisonment or threats of physical violence, and developed a concept of economic duress. Such economic duress has, in the reported cases, often been constituted by the threat to terminate a contract unless the party making the threat receives greater remuneration for its pledged performance.286 In one case, money was demanded by a union from an employer on behalf of employees, the threat being to blockade the employer’s ship in port.287 The question of when economic pressure may amount to duress raises even more starkly the conceptual difficulties lying at the heart of extortion, especially the question of whether certain conduct (such as a threatened breach of contract) will, by its very nature, amount to such illegitimate pressure so as to constitute extortion, or whether a specific effect upon the mind of the party threatened is still required (as seems to be the case).288

(b)  The mixed legal systems

In Scotland, rules against extortion have a long pedigree. There is some debate about what properly falls within the category of extortion, however, and how the idea of extortion relates to the established doctrine of ‘force and fear’ (a doctrine which reflects the Roman law’s vis et metus, discussed earlier). It can be argued that the category of extortion is a wide

283Ibbetson, A Historical Introduction, p. 235.

284Lord Simon in Lynch v. DPP of Northern Ireland [1975] AC 653, 695.

285Lord Scarman in Universe Tankships of Monrovia v. ITWF [1980] AC 614, 636.

286North Ocean Shipping Co. Ltd v. Hyundai Construction Co. Ltd [1979] QB 705; Pao On v.

Lau Yiu Long [1980] AC 614.

287Universe Tankships of Monrovia v. ITWF [1980] AC 614, revd. [1983] AC 366.

288See Lord Scarman’s discussion in Pao On [1980] AC 614, 635, of the question of the ­practicality of alternative courses of action that victims might choose to exercise. The practicality of alternative arrangements also features heavily in a recent judgment of the Privy Council, Borelli and others v. Ting and others [2010] UKPC 21.

as being present, but it is voidable given the presence of the fear produced by the threat. Examples of the types of case which fall into each category seem, however, not to be wholly determinative of the analysis applied in the case, the courts being more concerned with the effect produced on the victim in question. The adoption of such an approach discloses a judicial interest in the subjective state of mind of an apparently contracting party which marks a divergence from the usual concern for the objective appearance of consent.

Apart from the doctrine of force and fear, the doctrine of laesio enormis persists (under the nomenclature of ‘enorm lesion’), but only in relation to contracts entered into by minors.293 Otherwise, courts have taken the view that, absent any extortion or undue influence, the price determined by parties under a contract should not be interfered with. As Lord Blackburn put it in one Scottish appeal to the House of Lords:

If a man chooses to bargain that he will pay ten times the value of a thing I do not think you have, in the absence of undue influence, any right to cut down the price to the tenth part of what was agreed upon.294

As in England, a recognised exception to the unwillingness of the courts to interfere in unconscionable contracts is in relation to penalty clauses, where the justification has been given that such a clause puts the party subject to the stipulated penalty in terrorem of it and thus renders it contrary to public policy.295 There has also been development, discussed later, of the doctrine of good faith. This doctrine, together with statutory regulation of unconscionable bargains,296 is a solution to the problems of unfairness which is not founded upon the idea of lack of free will but rather upon the oppressive nature of the conduct of the other party. As in England, there has been a shift away from explaining problematic cases in terms of will and towards judicial and legislative paternalism, though this has occurred largely by grafting ideas of fairness onto the will model rather than by developing a new model of contract law.297

In South Africa, though the English term ‘duress’ is used, the law is largely based on Roman-Dutch foundations. Vis absoluta (where actual physical force is used to procure a contract) negates consent entirely; vis

293See McBryde, Contract Law, pp. 449–450.

294Caledonian Railway Co. v. North British Railway Co. (1881) 8 R (HL) 23, 31.

295See later discussion of penalty clauses in Ch. 6, at pp. 394ff.

296For instance, under the UK-wide Consumer Credit Act 1974.

297See, to the same effect in English legal development, Ibbetson, A Historical Introduction, p. 261.

compulsiva merely renders the contract voidable. In cases of vis compulsiva, it is clear that the will operates, though it is impaired. As De Villiers CJ put it,

it cannot be said that there is a total absence of consent – but inasmuch as his consent is forced and not free, the payment is treated as involuntary, and therefore subject to restitution.298

The threats used to procure the contract must be unlawful or contra bonos mores (the equivalent of the illegal/unwarrantable criterion of Scots law), and the fear must be a reasonable and not an ungrounded one.299 The use of terminology such as ‘economic duress’, suggestive of certain interests protected in the law of duress, has been criticised as likely to confuse, the established and more generalised terminology of unlawfulness/contra bonos mores being preferable.300

Laesio enormis has not survived in modern South African law, having been abolished by statute in 1952.301 However, other statutory provisions have been implemented to deal with oppressive contracts, among them the Credit Agreements Act,302 the Usury Act,303 the Alienation of Land Act,304 and section 3 of the Conventional Penalties Act.305 Such provisions, as with similar statutory developments in the UK, focus on the undesirable conduct of the contracting party in question, rather than on the effect upon the will of the other party.

In Louisiana, Article 1478 of the Civil Code provides that a ‘donation inter vivos or mortis causa shall be declared null upon proof that it is the product of fraud or duress’. More generally, Article 1948 (discussed earlier) provides triple protection against error, fraud and duress in relation to contracts. Each of these factors vitiates consent, rendering the contract voidable. Additionally, duress applied by a third party may vitiate consent.306 It is hard conceptually to justify why an act of donation should be void on account of duress, but a contract merely voidable, especially when, in Louisiana, acts of donation are treated as bilateral, and thus in a similar way to contracts. One conceivable justification may be that acts of donation, being gratuitous, are considered deserving of a higher level of protection than contracts in general. Article 1948, in adopting the

298  Per De Villiers CJ, in White Bros. v. Treasurer-General (1883) 2 SC 322, 351.

299See du Plessis, Compulsion and Restitution, pp. 101–2.

300Du Plessis and McBryde, ‘Defects of Consent’, pp. 127–8.

301Section 25 of the General Law Amendment Act No. 32 of 1952.