language of vitiated consent, clearly locates the essential issue in the will of the party affected by the duress.

(c)  German law

It is noteworthy that, under §123 of the BGB, contracts subject to extortion are not seen as void, even in extreme cases, as they might be in some other systems in the event of threats of physical violence, but are in every case categorised as valid but avoidable. So, despite what may be extreme threats by another party, the consent to contract is still seen as having been validly given and a contract thus validly formed, the will having been operative, albeit coerced, and not absent.

The BGB provides that the coercion must have been ‘unlawful’, a requirement which has produced a substantial body of case law, including cases on economic coercion. The concept of unlawfulness has proved a flexible one in the hands of the courts, which, as in other jurisdictions, have to tread a fine line between the prevention of conduct which infringes societal norms and sharp, aggressive, yet lawful, business practices. As with the approach in other systems, German courts have held that coercion may exist if what is threatened is unlawful (for instance, physical violence) or if what the party making the threats seeks to gain is illegitimate or unwarrantable (for instance, the receipt of a benefit which would otherwise not accrue to it). There have also been trickier cases where neither of these criteria is met, for instance where A has threatened to report B to the police for commission of a crime if B does not do something for A which B might conceivably have done for A in any event. In some such cases coercion has been held to be present, but in others not.307

(d)  Conclusion on extortion

Legislative developments in English law and the mixed legal system since the 1970s have developed the law of extortion beyond a focus on the effect of certain illegitimate forms of pre-contractual behaviour on the will of the victim. The modern approach of the systems studied shows a mixed

307In BAG NJW 1999, 2059, a cashier had been defrauding her employer, and the employer insisted that she enter into a contract to repay the money or else the employer would go to the police. This was held not to amount to coercion. A similar threat would probably amount to coercion if the benefit the employer had requested had no connection with the employee’s conduct.