Here’s the scenario: A woman was a member of the Church of Scientology, and wanted to get out, which is apparently no small feat. After enduring various forms of torture and solitary confinement, she was finally allowed to leave…so long as she signed a non-disclosure agreement, agreeing never to speak ill of the church. In sworn court testimony, she stated that “[i]f I had refused to sign the agreement, then I wouldn’t have been able to leave.” So she essentially had two choices: sign the agreement and be set free, or refuse to sign the agreement and be held captive and subjected to torture. Which would you choose? Of course, she signed the non-disclosure agreement and was set free. Subsequently, however, she sent an email to Scientology members criticizing the church, and is now being sued for breach of contract to the tune of $300,000.
Although the Church seems to think that they have a rock-solid case of breach of contract, I would argue differently. There are two good defenses to a breach of contract claim: (1) the party did not breach the contract, and (2) there was no contract to breach. In this situation, I suspect that this woman’s defense will be the latter—that there was no contract. Here’s why:
Among the excuses to contract formation are impossibility, impracticability, and coercion or duress (which is most likely to happen when there is a power imbalance). This last condition is clearly present in this scenario (“sign the agreement or we will torture you”), so it is my contention that even though the woman signed the agreement, no contract was formed. If a contract is signed under real duress, it cannot be enforced.
Here, the woman being sued is being sued for breaching an agreement signed under duress. Since that duress rose to such an extreme level, I argue that she could not have willingly entered into the non-disclosure agreement, and it is therefore not binding.