DURESS AS A VICE OF CONSENT. A READING FROM THE STANDARDS OF DECISION

Abstract

This article addresses the problem of the lack of implementation of arts. 1456 and 1457 of the Civil Code that regulate duress as a vice of consent. After analysing the dominant position between civil law scholars, it is proposed to take a new look to those legal provisions. In particular, it is proposes to conceive of art. 1456 as divided in two parts. The first one establishes a rule as to when duress has to be considered verified, on the basis of an in abstract assessment of the potential cases (the reactions to be considered would be those of a reasonable person). The second one takes care of the border-line cases produced by the previous rule: in this sense, it is read as establishing a standard that facilitates decision-making on the basis of an assessment of the similarities or the differences between the case at hand and two cases that are taken as models of concurrence or absence of duress. This approach takes notice of the problems regarding the proof of emotions, but does not dispense from the need of a careful justification of the decision finally taken.