A jurisprudential analysis of violence as a vice of consent : a comparative approach

Abstract

The notion of violence as a vice of consent in contract law has made its way from Roman law practices to recent jurisprudence. Under Common law, this concept has evolved through time, but under Maltese law and other jurisdictions such as Italian law and French law, it has kept its traditional form. Moral violence, which is regulated in the Civil Code in Articles 977 until 980, can lead to a defective consent. The legislator has provided for circumstances where violence would vitiate consent but, through jurisprudence, judges have formulated the required elements for violence to be accepted as a vice of consent. For the act of violence to impact the mental manifestation of a person’s will, it must be determining in nature, unjust and grave. This dissertation aims to better understand the notion of violence as a vice of consent in its working form through the critical analysis of local jurisprudence. To fulfil the purpose of this dissertation, it is essential to understand the influence other jurisdictions have had on Maltese law. Further, a comparative analysis of the notion of duress and undue influence under English law will be made. When compared with our notion, the notion of duress has evolved through time, whilst the notion of violence has kept its existential form and thus, this dissertation aims to provide a possible new interpretation of the notion of violence as a vice of consent.