Violence as a vice of consent

Abstract

Introduction: The vices of consent, which are traditionally grouped under error, violence and fraud, are the chief means used by law in order to guard the will of the contracting parties. Chapter 1: Violence as a vice of consent was unknown to the old Roman law and no remedies were made available to the coactus. However, later on in Classical law the Praetor intervened against this rigid approach and provided protection to the coactus through various praetorian remedies. Violence is inserted amongst the vices of consent in the Code Napoleon and successively without any substantial changes in the 1865 Italian Civil Code, which Codes are mainly the sources of our own Civil Code. Chapter 2: The internal requisites of contracts in general are: capacity, consent, object and cause. The existence of 'consent' is a necessary condition for the validity of a contract, however, this alone is not sufficient, in that, it must be free from any defect or vice. Chapter 3: Traditional doctrine distinguishes between 'physical violence' and 'moral violence', however, the provisions of the Civil Code only refer to moral violence. It is not every kind of moral violence which invalidates consent but only that type of violence which is circumscribed in the Civil Code and having those characteristics which doctrine and jurisprudence have unanimously adhered to. It is generally agreed that in order for moral violence to be considered as a vice of consent then three conditions must concur - this moral violence must be: determining, unjust and grave. Chapter 4: In the case of violence the law also provides that violence is a cause for annulment of a contract even if the violence is practised by a third party. This is to be distinguished from fraud which vitiates a contract only if it has taken place with the participation of the other contracting party. Moreover, it is established in both doctrine and jurisprudence that violence must be the result of an act of man. The Maltese Civil Code does not contemplate that situation where the violence is a result of force majeur, and this remains open to interpretation. What the Code provides for, on the other hand, is that situation where the violence practised by a third party is merely the occasion and not the cause of the obligation assumed by the obligor. Furthermore, 'reverential fear' is not recognised under our law as a vitiating element of consent, however, when this fear is accompanied by violence it could be considered as an aggravating factor. Chapter 5: The Common law concept of duress is marked by a gradual broadening of the doctrine to encompass not just threats to persons and property but also threats to the economic interests of the victim. The courts, in modem times, are thus developing wider rules to protect persons against improper pressure and inequality of bargaining power as it effects contracts. Chapter 6: When consent has been extorted by violence the contract is not considered as 'null' but merely 'annullable'. This type of nullity is 'relative' and not 'absolute', in the sense that only the person aggrieved may exercise it. Thus, the Maltese Civil Code provides for an action for rescission which has the effect of dissolving the obligation and replacing the parties in the condition in which they were before the agreement. Conclusion: Both our law and jurisprudence should be open to further developments in relation to contracts concluded under some form of pressure or mere influence, which does not amount to the traditional notion of violence as found under our law, but which nonetheless leave the contracting party with no choice but to contract.