Also known as: duress · necessity · duress/necessity · duress defense · necessity defense · compulsion
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A defense or ground for relief that excuses otherwise prohibited conduct or invalidates apparent assent when a party faces an unlawful threat leaving no reasonable alternative or reasonably believes the conduct necessary to avoid a greater harm.
A defense or ground for relief that excuses otherwise prohibited conduct or invalidates apparent assent when a party faces an unlawful threat leaving no reasonable alternative or reasonably believes the conduct necessary to avoid a greater harm.
Dominion Capital pressured Dustin Donovan into signing a note by threatening to ruin his business reputation. When Dominion later sought to foreclose, the court examined whether the underlying obligation was valid. Because the note resulted from duress, the mortgage securing it could not be enforced.
Dylan Duffy recklessly stored volatile chemicals near a school while fleeing a storm. When he broke into a shed to neutralize the chemicals and avoid an explosion, prosecutors charged him with trespass. Because his recklessness created the emergency, the necessity justification was unavailable.
A right or interest arising from urgent practical need, such as an easement for access across landlocked property.
Darrell Duncan's landlocked parcel had no access to a public road after a conveyance. He claimed an easement across Deborah Dunn's adjoining property. The court weighed the extent of necessity to the claimant in determining whether the easement arose by necessity.
Dakota Industries held a servitude by necessity across Dillon Energy's land for access to a public road. When Dillon later granted an alternative public access route, the original servitude terminated because the necessity that created it no longer continued.
A right or interest arising from urgent practical need, such as an easement for access across landlocked property.
Each sense below has its own examples, sources, and questions.
Dorothy Daniels approached a grieving widow at a funeral home and threatened to publicize family secrets unless the widow hired her as counsel. The disciplinary board found the contact involved duress and therefore violated the prohibition on coercive solicitation.
Denise Donovan's signature on a contract was obtained when Dynamic Solutions' agent physically forced her hand to sign while she protested. Because the apparent manifestation of assent was physically compelled by duress, it was not effective as assent.
The defendant must show that the conduct was believed necessary to avoid a harm or evil greater than that prevented by the law defining the offense. The defense is unavailable if the defendant was reckless or negligent in creating the situation or in appraising the necessity.
If conduct that appears to be a manifestation of assent is physically compelled by duress, the conduct is not effective as a manifestation of assent. A contract induced by an improper threat leaving the victim no reasonable alternative is voidable by the victim.
A donative transfer is invalid to the extent procured by duress. Duress exists when the wrongdoer threatened or performed a wrongful act that coerced the donor into making a transfer the donor would not otherwise have made.
A servitude by necessity lasts only as long as the necessity that gave rise to its creation continues. Once an alternative means of access becomes available, the servitude ends.
…between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by…