ABSTRACT
This Article examines the treatment, across several legal systems, of promises obtained through pressure – in cases of duress and of the exploitation of a state of necessity – and asks to what extent that treatment can be understood as designed to promote economic efficiency. As an operational tool, it proposes the criterion of the invalidity of the extorted contract. Under this criterion, an extorted contract should be held legally valid if the threatening party would carry out the contemplated act if the resulting contract were unenforceable. Unlike the criterion founded on the no-threat world, this criterion makes the legal rule an explicit variable in the analysis, which is its principal contribution. Where the no-threat world locates the rule implicitly within the notion of the ‘impossibility of threatening’, the proposed criterion treats it as an explicit variable and directly identifies its effect on incentives. This reveals the strategic threatener’s incentive to conceal from the court, at trial, his own lack of resoluteness by simulating genuine resoluteness. It is this behavior that explains why legal systems in some cases invalidate without exception the contracts arising from a threat, even where doing so harms the victim. The same difficulty of proof, moreover, has two dimensions: alongside the problem of establishing whether the threatener was authentically resolute stands the problem of establishing whether the threat was not engineered – that is, whether the coercive leverage had not been deliberately arranged. These questions bear on conduct never undertaken or on prior intentions that cannot be verified at trial, and both arise in threats of unlawful acts as well as in blackmail, where they converge in justifying the second-best rule of invalidity in every case.
Baffi, Enrico, Voluntary but Voidable? Consent, Coercion, and the Limits of Contractual Freedom (July 25, 2026).
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