While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, by recognising that the law makes value judgments of both the threatening party’s actions and the victim’s response; secondly, by lightening the burden of the illegitimate pressure element and providing it greater focus; and, thirdly, by providing a better fit for considerations such as ‘no practical alternatives’ that strain the existing framework.
Alexander FH Loke, Excusable consent in duress. Legal Studies. First published: 21 February 2017. DOI: 10.1111/lest.12160.