Force

Force and Fear are used as technical terms in the law of Scotland to denote that amount of constraint or compulsion which is enough to annul an engagement or obligation entered into under its influence. As consent is the essence of contracts, contracts entered into under compulsion are, in law, void from the first, as if they had never been entered into. But it is not every degree of constraint which will have this effect in law. As Bell states it (Principles, 12), the force and fear must be 'not vain or foolish fear, but such as to overpower a mind of ordinary firmness, or such as, applied to a person of weaker age, sex, or condition, will produce the effect of overpowering violence on a firmer mind. Among the instruments of force and fear which have been held to annul engagement are threats and terror of death; pain to one's self, or one's parent or child; infamy and disgrace; imprisonment, when employed to obtain an advantage beyond the lawful object of it; and even loss of property.' On proof of force and fear the law restores the parties to the contract to the position in which they were before it was entered into, and will find the party employing it liable in damages as reparation for any injury done to the party constrained. The corresponding term in English law is Duress (q.v.). This is by imprisonment or by threats. The kind of threats held to constitute duress are threats of imprisonment, or of loss of life or limb, or threats of mayhem—i.e. of the deprivation of a member proper for defence in fight, as an arm, a finger, an eye, or a fore-tooth (but not a jaw-tooth, or an ear, or a nose, because these are supposed to be of no use in fighting). The maxim of the common law with regard to duress is that 'what otherwise is good and just, if sought by force or fraud, becomes bad and unjust.'