hamas, where he was lying. We see no reason to doubt his statement that, if he had known of the employment of the Morse, he would not have employed the Dauntless. The parties were not dealing on equal terms, and their contract cannot be enforced.

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Question 73: In Case 73 what was the material fact which the Captain of the Clandeboye was ignorant of the knowledge of which would be material to his decision? Why was failure to disclose that fact fraud in this case?

(Note: To make failure to disclose a fact fraud it is not necessary that the fact be 'absolutely inaccessible' to the other. It is enough if it be practically inaccessible. See the Texas fever case.)

§ 74. (Contracts, Sec. 42.) Silence as fraud-Contract one uberrimae fidei.

(Note: Contracts of guaranty, suretyship, and insurance are of a nature which calls for disclosure of material facts. In such cases there is a risk. The risk is not what the promisee may succeed in inducing the promisor to believe is the risk. The promisor undertakes only to cover the risk according as they both know it to be. Hence, the promisee must disclose. If he knows of defaults by a party to be bonded; or facts that make a fire risk or life risk greater to the insurer, he must make these known.) § 75. (Contracts, Sec. 43.) Silence as fraud-Relationship of trust and confidence.

Case 74. The Clandeboye, supra.

(Note: See cases in the Subdivision on Corporations for fiduciary relationship existing between Director and Corporation, and Director and Stockholder.)

§ 76. (Contracts, Sec. 44.) Summary of what constitutes fraud.

(Note: Fraud rendering contract voidable consists in a false representation of fact made to be acted on and actually acted on by the person to whom the representation is made to his damage. Mere opinions and predictions are not fraud.

Active concealment of material fact is fraud.

Mere silence is not fraud; unless facts are not discoverable by the other by such reasonable diligence as we should expect him to exercise if he wanted to know; or unless contract in its nature is one made on the assumption of full disclosure; or unless the contract is between those who occupy a relationship of trust and confidence.)

b. Duress.

§ 77. (Contracts, Sec. 45.) Duress defined-Its effect. Case 75. Galusha v. Sherman, 81 N. W. (Wis.) 495. Point Involved: What is meant by the term duress? What tests have been applied?

MARSHALL, J.: It (duress) is a branch of the law, that, in the process of development from the rigorous and harsh rules of the ancient common law, has been so softened by the more humane principles of the civil law, and of equity, that the teachings of the older writers on the subject, standing alone, are not proper guides. The change from the ancient doctrine has been much greater in some jurisdictions than in others. There are many adjudications, based on citations of authorities not in themselves harmonious, and many statements in legal opinions based on the ancient theory of duress, which together create much confusion on the subject, not only as it is treated by text writers, but by judges in legal opinions.

"Anciently, duress in law by putting in fear could exist only where there was such a threat of danger to the object of it as was deemed sufficient to deprive a constant or courageous man of his free will, and the circumstances requisite to that condition were distinctly fixed by law;

"Early in the development of the law, the legal standard of resistance that a person was bound to exercise for his own protection was changed from that of a constant or courageous man to that of a person of ordinary firmness.

"Duress, in its broad sense, now includes all instances where a condition of mind of a person caused by fear of

personal injury or loss of limb, or injury to such person's property, wife, child, or husband, is produced by the wrongful conduct of another rendering such person incompetent to contract with the exercise of his free will power, whether formerly relievable at law on the ground of duress or in equity on the ground of unlawful compulsion.

"The true doctrine of duress, at the present day, both in this country, and England, is that a contract obtained by so oppressing a person by threats regarding his personal safety or liberty, or that of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress, whether the oppression causing the incompetence to contract be produced by what was deemed duress formerly, and relievable at law as such, or wrongful compulsion remediable by an appeal to a court of equity. The law no longer allows a person to enjoy, without disturbance, the fruits of his iniquity, because his victim was not a person of ordinary courage; and no longer gauges the acts that shall be held legally sufficient to produce duress by any arbitrary standard, but holds him, who, by putting another in fear, shall have produced in him a state of mental incompetency to contract, and then takes advantage of such condition, no matter by what means such fear be caused, liable at the option of such other to make restitution to him of everything of value thereby taken from him.

Question 75. (1.) Define duress; (2.) What was the ancient test, the later test and present day test of duress?

(3.)

What effect has duress upon a contract?

Case 76. International Harvester Co. v. Voboril, 187 Fed. 973.

Facts: The Harvester Company sued Anna Voboril on her promissory notes which were given by her to pay the debts of her husband. Her defense was that her signature was obtained through threats by representatives

of the Company, that, unless she signed, her husband would be arrested and imprisoned. It was contended that even if these threats were made, they would constitute no duress, because the husband had committed no crime for which he could be arrested. It appeared that Mrs. Voboril was an ignorant foreigner, the mother of seven children, and at the time pregnant with an eighth.

Point Involved: Whether a mere threat to arrest a near relative who has committed no crime can constitute duress if as a matter of fact the contracting party was, owing to the circumstances, peculiarly susceptible to fear in that regard.

*, that even if the threats were made they could not in law have caused duress, because defendant's husband had committed no offense, there was no officer present to make the arrest, and no warrant had been issued or proceeding commenced against him. The contention is untenable. Duress may be caused by threats of a criminal prosecution of a husband, wife, child, or other near relative of the person whose action is thereby controlled, though no crime has in fact been committed or prosecution begun. If the contracting party has been so put in fear as to be deprived of the free will power essential to contractual capacity, the transaction thereby induced may be avoided. A valid contract implies mutual voluntary assent of the parties; and if one of them overcomes the mind and will of the other by moral compulsion, and so obtains his concurrence, though the form and shell of a contract exist the very essence of it is wanting.

"Susceptibility to coercive influence is not uniform, and, in determining the question of duress, sex, age, state of health, family conditions, etc., may be considered with the other circumstances. In the case at bar the plaintiff had no claim against the defendant. The debtor was her husband, who had failed in business. Primarily she was neither legally nor morally responsible. The representa

tives of the plaintiff sought to obtain her guaranty of his obligations and to bind her separate estate for their payment. She was of Bohemian extraction and apparently ignorant of business affairs. She was the mother of seven children, the eldest of whom was 14 years of age, and was pregnant with an eighth. We must assume from the verdict and evidence that threats were made to have her husband arrested and jailed unless she signed and guaranteed the notes, and we cannot say as matter of law they were insufficient under the circumstances to deprive her of that freedom of will essential to voluntary action. All men appreciate how susceptible the mind of a wife and mother is to such influence, and how she may be coerced to give up her property when the liberty of husband and father is believed to be at stake. It should be mentioned in this connection that the court excluded some of the testimony as to the condition of the defendant and the state she was put in by the threats, which should have been admitted. This bore upon the vital feature of the defense."

Question 76: (1) What was the threat in this case? Why was an inquiry into the condition, circumstances and personality of defendant material?

(2) A student has criticized this case by saying that the statement that the plaintiff was the mother of seven children, the eldest of which was 14, and was pregnant with an eighth, was "jury talk," and should be disregarded. Do you agree with this criticism? Why?

Case 77. Spaids v. Barrett, 57 Пll. 289.
MR. JUSTICE THORNTON:

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"Upon the first question authorities differ. All promises made and contracts entered into, where there is duress of the person, may be avoided. The reason is, that the person is induced to do the act by restraint of his liberty, or menace of bodily harm. But it has been held that an agreement, made under duress of goods, is not void, and that the person thus circumstanced must exert himself and resist the compulsory influence, when