Home Table of Contents

AMI 2435 Defense—Duress

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2435

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 24. Contracts

Defenses

AMI 2435 Defense—Duress

[Defendant] contends that [he][she][it] entered into the contract with [plaintiff] under duress and has the burden of proving each of three essential propositions:

First, that [he][she][it] involuntarily accepted the terms of the contract;

Second, that [he][she][it] had no reasonable alternative other than to accept those terms; and

Third, that [his][her][its] acceptance of those terms was the result of threats or coercive acts of [plaintiff].

[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for [defendant]].

NOTE ON USE

If the contract involves a sale of goods and presents an issue of unconscionability governed by Ark. Code Ann. § 4-2-302, do not use this instruction.

If the defendant alleges that the duress was caused by a person not a party to the transaction, this instruction should be modified. See Restatement (Second) of Contracts § 175(2) (1981).

Do not use the bracketed sentence if the case is submitted on interrogatories.

COMMENT

This instruction is based on Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993) (reversing trial court's summary judgment that declared a contract was entered under duress where reasonable minds could reach different conclusions on the facts relating to duress), citing W.R. Grimshaw Co. v. Mevil C. Winthrow Co., 248 F.2d 896 (8th Cir. 1957), cert. denied, 356 U.S. 912 (1958), and Oberstein v. Oberstein, 217 Ark. 80, 228 S.W.2d 615 (1950).

Duress may be economic. Cox, 315 Ark. at 345, 867 S.W.2d at 463. “Economic duress does not exist, however, merely because a person has been a victim of a wrongful act; in addition the victim must have no choice but to agree to the other party's terms or face serious financial hardship.” Id. (quoting from and adopting standard announced in Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline, 584 P.2d 15, 22 (Alaska 1978) (emphasis added in Cox).

“What constitutes a reasonable alternative is a question of fact, depending on the circumstances of each case.” Cox, 315 Ark. 345–346, 867 S.W.2d at 463 (quoting Totem).

If the party claiming duress fails to act within a reasonable time after the circumstances that gave rise to the duress have ceased, he may lose the power to avoid the contract. See Restatement (Second) of Contracts § 381 (1981). This concept has also been described as a ratification. The court in Oberstein stated that ratification may result “if the party entering into the contract under duress accepts the benefits growing out of it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to avoid it or have it annulled.” 217 Ark. at 88, 228 S.W.2d at 621 (quoting Page v. Woodson, 211 Ark. 289, 200 S.W.2d 768 and 17 Am.Jur. 902) (rejecting the wife's claim of duress to void a divorce decree where she accepted support checks for approximately six months before seeking to invalidate the decree).

End of Document