Throwing the Baby out with the Bathwater? Four Questions on the Demise of Lawful-Act Duress in New South Wales‪.‬

I INTRODUCTION Contracts that result from the application of improper pressure by one contracting party (D) to the other contracting party (P) are, subject to possible defences available to D, revocable at the election of P. One device that regulates such victimization--at least when it takes the form of coercion through 'threat-and-demand' tactics--is the doctrine of duress. As it developed at common law, though eventually under the significant influence of equity as well, (1) the duress doctrine came to recognize two forms of improper coercion, which I shall for convenience label 'regular duress' and 'lawful-act duress'. Regular duress concerns the situation where D, in support of a specific demand, proposes to violate P's existing legal entitlements (whether sourced in criminal law, tort law, contract law, or elsewhere) that comprise the normative backdrop of P and D's pre-transactional relationship or encounter. Hence, in exercising regular duress, D threatens a consequence that would be unlawful per se, that is, if the threat were to be implemented. Lawful-act duress, in contrast, likewise takes the form of 'threat and demand', but what D conditionally proposes to do in support of his specific demand is to exercise his own lawful rights, liberties, or powers in a manner unwelcome to P or to P's disadvantage, typically in a way calculated to 'exploit' P's peculiar vulnerability to being pressed in the circumstances.