|
4.2-16 Defense - Duress
New December 9, 2011
The defendant claims that if the <specify transaction> existed,
it is not enforceable because (he/she/it) agreed to it under duress.
To demonstrate duress, the defendant must prove three elements.
First, the defendant agreed to the alleged <specify transaction> because of a
wrongful act or threat by the plaintiff. In this case, the defendant claims
that the wrongful act(s) or threat(s) (is/are) <insert threat/wrongful act alleged>.
Second, the wrongful act or threat induced a fearful state of mind in the defendant
that left (him/her/it) no reasonable alternative but to agree to the <specify transaction>.
Third, the defendant otherwise would not have agreed to the <specify transaction> absent
the wrongful act(s) or threat(s).
Authority
R. F. Daddario & Sons, Inc. v. Shelansky, 123 Conn. App. 725, 739 (2010);
Cox v. Burdick,
98 Conn. App. 167, 177-78, cert. denied, 280 Conn. 951 (2006); Barbara Weisman, Trustee v. Kaspar, 233
Conn. 531, 549-50 n.15 (1995).
Notes
Because the Appellate Court’s four-part test [(1) a wrongful act or threat, (2)
that left the victim no reasonable alternative, and (3) to which the victim in fact acceded,
and that (4) the resulting transaction was unfair to the victim] in the foregoing authorities
included concepts of unfairness, impossibility and lack of reasonable alternatives, the Civil
Jury Instruction Committee decided that the “no reasonable alternative” standard encompassed
the essence of the test.
Duress must be pleaded as a special defense pursuant to Practice Book § 10-50.
Although the Connecticut Appellate and Supreme Courts have not stated the burden of
proof, in at least two instances, the Superior Court has stated the burden as preponderance of the
evidence. Pogacnik v. Margueron, Superior Court, judicial district of Stamford-Norwalk at Stamford,
Docket No. CV 91 0116631 (July 10, 1995, Karazin, J.) (preponderance) and
Statewide Grievance
Committee v. Timbers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket
No. CV 99 0171925 (August 2, 2000, Karazin, J.), aff’d, 70 Conn. App. 1, cert. denied, 261 Conn.
908 (2002), cert. denied, 537 U.S. 1192, 123 S. Ct. 1274, 154 L. Ed. 2d 1027 (2003). This is
consistent with the Supreme Court’s opinion in Stuart v. Stuart, which in dicta questioned the
soundness of the clear and convincing standard for common-law fraud. 297 Conn. 26, 38-44 (2010)
(“the general rule [is] that when a civil statute is silent as to the applicable standard of proof,
the preponderance of the evidence standard governs factual determinations required by that statute”).
But see In re Mason, 300 B.R. 160, 165 (Bankr. D. Conn. 2003), citing 25 Am. Jur. 2d, Duress and Undue
Influence § 28 (1996) (clear and convincing); 25 Am. Jur. 2d, Duress and Undue Influence § 34 (2004)
(clear and convincing); 28 S. Williston, Contracts (4th Ed. 1995) § 71:10, p. 632-34 (2003) (clear
and convincing).
If duress is raised against a fiduciary, see Fiduciary Duty, Instruction 3.8-2.
|
