FORCE AND FEAR. As consent is of the essence, or rather is the essence of all con tracts, and as conseut implies not only intelligence, but unfettered power of action in the consenting parties, contr.icts, by the laws of all civilized nations, will be invalidated if it shall be proved that they were entered into under the influence of force or fear. Circumstances which constrain the wilt have the same effect as those which blind the understanding, and the law of force and tear is consequently closely analogous to that Of fraud (q.v.), including under that head misrepresentation, concealment, and conse quent error (q.v.). But is not every degree of constraint, however exercised, which will have this effect in law. On the contrary, it must be of such a description as may be reasonably supposed to influence the will of the party in the circumstances in which he is placed at the time. In determining, therefore, whether there really has been force or fear in the legal sense, the law will take into account the age, sex, education, and other personal characteristics of the party, along with the accidental circumstances in which he was placed, e.g., the state of his health and spirits at the time, whether he was alone, what anxiety he may have felt for the life or interest of others, and the like. But " where there is no peculiar weakness of age or sex, or condition," says Mr. Bell, stating in this respect not the law of Scotland alone, but of most other countries, " law will require, in order to annul a contract, such fear and compulsion as may reasonably shake a mind of ordinary constancy and resolution, and will not listen to the pretense of every vain and foolish fear."—Corn. i. p. 22, Shaw's ed. As a contract which is invalid on the ground of force and fear is not only incapable of being enforced after its invalidity has been ascertained by legal process, but from the absence of consent was invalid ab initio—i.e., no contract, in a legal sense, at all—the object of the law is to
restore the parties to the position in which they were before it was entered into. All moneys which have been paid under the provisions of the extorted contract must con sequently be repaid, and reparation in as far as possible must be made by the payment of damages for such personal injuries as the party who was dragged into it may have suffered fromthe enforcement of its provisions. See REDUCTION. By the law of Eng land, duress (q.v..) which will invalidate a contract must amount to fear of the loss of life or limb called mayhem. "Whatever is done by a man to save either life or mem ber," says Blackstone, "is looked upon as done upon the highest necessity and compul sion. Therefore, if a man, through fear of death or mayhem, is prevailed upon to execute a deed, or do any other legal act, these, though accompanied with all other the requisite solemnities, may be afterwards avoided." But "a fear of battery or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burned, or one's goods taken awayand destroyed, because in these cases, should the threat he performed, a man may have satisfaction by recovering equivalent dam Cons. p. 142. The avoidance of such a contract is, however, &pendent on the will of the injured party. "A contract made under duress, may be avoided by the person whose free-Will was thus restrained, though lie has also an election, if he thinks proper, to insist upon it as a binding transaction" (b, vol. ii. p. 62). But the parties who are entitled to treat a contract either as a nullity or a subsisting contract, must make their election, and cannot, after treating the contract as rescinded, set it up as a subsisting contract (Addison on Contracts, pp. 273, 436, and 1074).