Duress as a tort law defence?

Abstract

Abstract This paper addresses a straightforward question: ‘Should tort law recognise a defence of duress?’ Previous scholarship concerning this issue is thin on the ground, and the answers it supplies are demonstrably inadequate. Those who have favoured the development of a duress defence in tort have done so by analogy with criminal law where duress is, of course, well established. The rival school of thought has sought to highlight the fact that excuse defences are out of place in tort and that, therefore, there is no room for duress in tort. This paper rejects both approaches. It accepts that the criminal law is a poor source of analogy, but rejects the idea that duress must be seen as an excuse (and hence the idea that there can be no space for it in tort). It offers a fresh start based on the role of duress within tort law's sibling, the law of contract. It identifies three possible conceptions of duress in contract and then asks whether these conceptions could be used to ground a comparable defence of duress in tort by analogy. It concludes that a plausible case can be made in respect of each conception, but – given that the paper has primarily theoretical ambitions – it stops short of advocating any one conception in particular.