PJC Business

PJC 101.23

C ONTRACTS

PJC 101.23 Defenses—Instruction on Duress

Failure to comply by Don Davis is excused if the agreement was made under duress caused by Paul Payne . Duress is the mental, physical, or economic coercion of another, causing that party to act contrary to his free will and interest. COMMENT When to use. PJC 101.23 is appropriate if one party claims the agreement is void able because it was made under duress. It may also be used in slightly different lan guage to submit an affirmative claim for rescission. As a general rule, a party seeking cancellation or rescission must do equity by restoring the other party to his original status. Texas Co. v. State , 281 S.W.2d 83, 91 (Tex. 1955); Freyer v. Michels , 360 S.W.2d 559, 562 (Tex. App.—Dallas 1962, writ dism’d). It is not clear whether this rule applies if the doctrine is asserted as a defense. Source of definition. The definition is derived from Black Lake Pipe Line Co. v. Union Construction Co. , 538 S.W.2d 80, 85 n.2 (Tex. 1976), overruled on other grounds by Sterner v. Marathon Oil Co. , 767 S.W.2d 686 (Tex. 1989); Brooks v. Tay lor , 359 S.W.2d 539, 542 (Tex. App.—Amarillo 1962, writ ref’d n.r.e.); and Housing Authority of City of Dallas v. Hubbell , 325 S.W.2d 880, 905 (Tex. App.—Dallas 1959, writ ref’d n.r.e.). Caveat. Unless the alleged coercion can legally constitute duress, PJC 101.23 should not be submitted. It is never duress to threaten to do that which a party has a legal right to do. In re First Merit Bank, N.A. , 52 S.W.3d 749, 758 (Tex. 2001). Filing or threatening to file a civil suit cannot, as a matter of law, constitute duress. Continen tal Casualty Co. v. Huizar , 740 S.W.2d 429, 430 (Tex. 1987). The vice arises only if extortive measures are employed or if improper demands are made in bad faith. Mat thews v. Matthews , 725 S.W.2d 275, 279 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.); Sanders v. Republic National Bank , 389 S.W.2d 551, 555 (Tex. App.— Tyler 1965, no writ); see also Mitchell v. C.C. Sanitation Co. , 430 S.W.2d 933, 937 (Tex. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). State National Bank v. Farah Manufacturing Co. , 678 S.W.2d 661 (Tex. App.—El Paso 1984, judgm’t dism’d by agr.), gives a general overview of this topic. A threat to file criminal prose cution may constitute duress even if the threatened party is guilty of the crime. Pierce v. Estate of Haverlah , 428 S.W.2d 422, 425 (Tex. App.—Tyler 1968, writ ref’d n.r.e.). Economic duress. If economic duress is alleged, this instruction should be sub mitted only if the party against whom duress is charged was responsible for the other party’s financial distress. Simpson v. MBank Dallas, N.A. , 724 S.W.2d 102, 109 (Tex.

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