California Civil Jury Instructions (CACI)

332. Affirmative Defense—Duress

[Name of defendant] claims that there was no contract because [his/her] consent was given under duress. To succeed, [name of defendant] must prove all of the following:

1. That [name of plaintiff] used a wrongful act or wrongful threat to pressure [name of defendant] into consenting to the contract;

2. That [name of defendant] was so afraid or intimidated by the wrongful act or wrongful threat that [he/she] did not have the free will to refuse to consent to the contract; and

3. That [name of defendant] would not have consented to the contract without the wrongful act or wrongful threat.

An act or a threat is wrongful if [insert relevant rule—e.g., “a criminal act is threatened”].

If you decide that [name of defendant] has proved all of the above, then no contract was created.

New September 2003; Revised December 2005

Directions for Use

Use CACI No. 333, Affırmative Defense—Economic Duress, in cases involving economic duress.

Sources and Authority

  • The Civil Code provides that consent is not free when it is obtained through duress, menace, fraud, undue influence, or mistake and is deemed to have been so obtained when it would not have been given but for such fraud or mistake. (Civ. Code, §§ 1567, 1568.)
  • Civil Code section 1569 provides that the following acts constitute duress:

    1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife;

    2. Unlawful detention of the property of any such person; or,

    3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.

  • Civil Code section 1570 provides:

    Menace consists in a threat:

    1. Of such duress as is specified in Subdivisions 1 and 3 of the last section;

    2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or,

    3. Of injury to the character of any such person.

  • “Menace” is considered to be duress: “Under the modern rule, ‘ “[d]uress, which includes whatever destroys one’s free agency and constrains [her] to do what is against [her] will, may be exercised by threats, importunity or any species of mental coercion. It is shown where a party ‘intentionally used threats or pressure to induce action or nonaction to the other party’s detriment.’ ” ’ The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing.” (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84 [260 Cal.Rptr. 403], internal citations omitted.)
  • “Duress envisions some unlawful action by a party by which one’s consent is obtained through fear or threats.” (Keithley v. Civil Service Bd. of The City of Oakland (1970) 11 Cal.App.3d 443, 450 [89 Cal.Rptr. 809], internal citations omitted.)
  • Duress is found only where fear is intentionally used as a means of procuring consent: “[A]n action for duress and menace cannot be sustained when the voluntary action of the apprehensive party is induced by his speculation upon or anticipation of a future event suggested to him by the defendant but not threatened to induce his conduct. The issue in each instance is whether the defendant intentionally exerted an unlawful pressure on the injured party to deprive him of contractual volition and induce him to act to his own detriment.” (Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)
  • It is wrongful to use the threat of criminal prosecution to obtain a consent: “California law is clear that an agreement obtained by threat of criminal prosecution constitutes menace and is unenforceable as against public policy.” (Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate civil action is not considered wrongful: “[T]he action or threat in duress or menace must be unlawful, and a threat to take legal action is not unlawful unless the party making the threat knows the falsity of his claim.” (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
  • Standard duress is evaluated under a subjective standard: “The question in each case [is], Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Hence, under this theory duress is to be tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129 Cal.Rptr. 566].)
  • The wrongful acts of a third party may constitute duress sufficient to allow rescission of a contract with a party, who, although not participating in those wrongful acts, had knowledge of the innocent party’s position. (Leeper v.

    Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)

  • “[Defendant has] the burden of proving by a preponderance of the evidence the affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito (1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson (1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 309–315

17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud, Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121 (Matthew Bender)

9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue Influence, and Mistake, § 92.20 et seq. (Matthew Bender)

27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or Opposing Equitable Remedies in Contract Actions, 8.07

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence, 17.03–17.06, 17.20–17.24[1]