Definition
Vim et duritiem facta (Latin: "done by force and duress") is an archaic common law writ directed to the justices of the Court of Common Pleas (common bench), commanding them to send up the record of a recognizance that the recognizor — the person who entered into it — alleges was acknowledged under force and duress. If the examination of that record bore out the allegation, the recognizance could be annulled on the ground that genuine consent was absent at the time it was made.
In practical terms, the writ was the procedural mechanism by which a party could attack the validity of a recognizance already of record by invoking the defense of duress. Because a recognizance was a solemn acknowledgment made before a court or officer of record — and therefore presumed to reflect the voluntary act of the recognizor — ordinary pleading was insufficient to unravel it. The writ provided the formal channel through which the record itself could be recalled and scrutinized.
Why It Matters in Research
This term is almost exclusively a historical research concern. Researchers are unlikely to encounter it in any living procedural context; its relevance is confined to pre-modern common law records, particularly English chancery and common bench materials, and any American colonial or early republic sources that preserved English writ practice.
The primary research trap is treating vim et duritiem facta as a standalone doctrine rather than as a procedural instrument. The underlying substantive principle — that duress vitiates a recognizance — survived the abolition of the writ form itself. Researchers following a thread from this writ into later law should pivot quickly to the law of duress and the conditions for avoiding obligations of record, rather than searching for the writ by name in post-writ-reform sources.
The writ also appears in close proximity to the register of writs (Registrum Omnium Brevium / Reg. Orig.), which is the primary source cited in the historical dictionaries. Researchers working in that register or in treatises organized around it will encounter vim et duritiem facta in catalogues of original writs, often listed alongside other writs targeting defects in the formation of obligations of record.
Because recognizances functioned in multiple legal contexts — bail, keeping the peace, appearance bonds, debt — the relevance of this writ could surface in criminal, civil, or chancery research depending on the nature of the underlying recognizance at issue.
Historical Dictionary Support
Black's Law Dictionary (2nd Ed.) provides the only dictionary entry identified for this term. The definition is compact but accurate: a writ to the justices of the common bench for sending a record touching a recognizance, upon the recognizor's suggestion that it was acknowledged by force and duress, so that if the duress appeared, the recognizance might be annulled. The citation given is to Reg. Orig. 183, meaning the Registrum Omnium Brevium (Register of Original Writs), the standard reference for the forms of original writs in the English common law tradition.
No other historical dictionary in the Law Mind corpus provides a separate entry for this term. Earlier editions of Black's and contemporaneous dictionaries of the period (Bouvier, Burrill, Tomlin) that catalogued Latin writs may contain passing references but do not appear to treat it as a principal entry. The Black's entry, brief as it is, represents the primary dictionary authority available.
What the historical sources do not address is the relationship between this writ and the general development of the duress defense as applied to instruments of record. The writ is a procedural artifact; the substantive law it served — that coerced consent cannot bind — was independently theorized in equity and later absorbed into the common law of contracts and obligations.
Jurisdictional Note
This writ was an English common law instrument and never became a feature of American procedural law in any developed sense. American jurisdictions that followed the Field Code reforms of the mid-nineteenth century and subsequent merger of law and equity eliminated the writ system entirely. Any research touching this term in an American context will be confined to colonial-era or very early republic materials where English practice was closely followed.