Duress

11 Key excerpts on "Duress"

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  Vitiation of Contractual Consent

  • Peter MacDonald Eggers(Author)
  • 2016(Publication Date)
  • Informa Law from Routledge

    (Publisher)

  Chapter 3Duress

  3.1 Introduction

  Duress is a strangely ill-defined concept. This lack of definition has hampered the clear development of the law of Duress, especially as applied to contracts that are made as the result of Duress. The essence of Duress lies in the coercion, compulsion or constraint exercised upon the mind of a person in order to induce or with the consequence of causing that person to embark on a course of conduct – for the purposes of this study, to enter into a particular contract on the terms agreed. Such coercion may be referred to as “pressure ” on the party coerced.1 In H v H ,2 Karminski, J said that “In the case of Duress with regard to the marriage contract, as with regard to any other, it is obvious that there is an absence of a consenting will. ”3 In Pao On v Lau Yiu Long ,4 Lord Scarman said that “Duress, whatever form it takes, is a coercion of the will so as to vitiate consent ” and that the compulsion underlying Duress “had to be such that the party was deprived of ‘his freedom of exercising his will’ ”.5 Such coercion may result in the complete overpowering of the victim’s intention, desire, interests or will, or it may result in the deflection of that will, causing that person to change course by a matter of a few degrees, rather than turning in the opposite direction.6 Furthermore, it does not matter what form the Duress takes, provided that it can be said that the claimant’s consent to enter into the contract has been coerced, overborne or deflected.7 Thus, in Kaufman v Gerson ,8 Collins, MR said that: “

  what does it matter what particular form of coercion is used, so long as the will is coerced? Some persons would be more easily coerced by moral pressure, such as was exercised here, than by the threat of physical violence

  .”

  The effect of Duress is not limited to contracts and indeed extends to all legal obligations which are otherwise imposed by the law as a result of a party’s freely given consent. Contracts are of course the apex of such obligations and Duress has a special part to play in the law of contract. In In re Meyer ,9

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  The Restatement Third: Restitution and Unjust Enrichment

  Critical and Comparative Essays

  • Charles Mitchell, William Swadling, Charles Mitchell, William Swadling(Authors)
  • 2013(Publication Date)
  • Hart Publishing

    (Publisher)

  5 One of these grounds is Duress. It is defined in § 14(1) as ‘coercion that is wrongful as a matter of law’. This essentially means that the victim must have 4 ibid vol I, 43. 5 ibid vol I, 45. Duress and Related Forms of Pressure 91 been subjected to a wrongful threat or refusal. 6 A lawful threat, for example, a threat of litigation to enforce a demand, does not constitute Duress unless the demand was made in bad faith, in pursuit of a claim known to be unjustified. 7 Although some definitions of Duress further require that the threat must ‘over-come’ the victim’s will, the drafters of R3RUE rightly regarded this element as superfluous. Their view is in line with the civil law notion that it is not the lack of volition on the side of the victim which deprives consent of its force, but the use of improper means to obtain consent, namely an unlawful threat. 8 Similar approaches have for some time been supported in English law: it is not the over-borne will but the unacceptable nature of the means used to influence a person’s will that lies at the heart of Duress. 9 The general definition of Duress is subject to an important qualification. In cases of unjust enrichment, when it is easy to prove that the defendant is enriched by receiving an overpayment, the claimant may rely on § 14 without having to prove wrongful coercion. 10 These cases may, for want of a better expression, be termed ‘Duress light’. It suffices if the defendant was subjected to a lawful threat of civil litigation made in good faith, as long as he would suffer substantial prejudice, beyond merely having to defend a lawsuit. 11 Thus, if a lender mistakenly but in good faith threatens to foreclose a mortgage unless the borrower makes a pay-ment which is not due, and the borrower pays to prevent foreclosure from inter-fering with the anticipated sale of the property, the payor may claim restitution of the excess payment.

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  Text, Cases and Materials on Contract Law

  • Richard Stone, James Devenney(Authors)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  Chapter 10 Duress

  Chapter contents 10.1 Introduction 10.2 Duress of the person 10.3 Duress of goods 10.4 Economic Duress 10.5 Remedies Additional reading

  10.1 Introduction

  This chapter is concerned with the law of Duress, which governs situations where one party has been induced to enter into a contract as a result of illegitimate pressure of some kind. Historically, the law of Duress was restricted to pressure in the form of threats of violence or some threats to goods. More recently, the courts have recognised that illegitimate pressure may include ‘economic’ threats (such as possibly a threat to break a contract). This has created new problems, however, due to the difficulty of ascertaining what constitutes illegitimate economic pressure. In commercial dealings, threats are often made in pre-contractual negotiations as a means of encouraging the other party to enter into the contract. For example, a party might say, ‘If you do not enter into this contract we will not deal with you again in the future’, or ‘If you do not buy these goods from us we will not renew your credit facility next year’. These threats clearly impose pressure on the other party but it is not clear whether the pressure is illegitimate.

  If it is shown that a contract has been entered into as a result of Duress the contract is rendered voidable. It is often stated that there are two key elements to a Duress claim. These were identified by Lord Scarman in Universe Tankships v International Transport Workers Federation

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  The Law of Duress and Necessity

  Crime, Tort, Contract

  • Nathan Tamblyn(Author)
  • 2017(Publication Date)
  • Taylor & Francis

    (Publisher)

  p.166 5    Criminal law Duress

  Duress by threats has long been recognised. It is where the Duressor commands the defendant to commit a crime, otherwise threatening them with bad consequences if they do not comply. (To this extent, it shares the same coercive ‘or else’ element as tortious intimidation and contractual Duress.)

  Duress of circumstances was recognised more recently. It is where the defendant commits a crime of their own initiative, in order to escape the bad consequences of the position in which they find themselves. It often involves driving offences, such as dangerous driving to escape threats of violence,1 or driving while intoxicated or over the speed limit in order to get an injured person to hospital.2

  The courts have often said that Duress by threats and Duress of circumstances are subject to the same legal test.3 Authors tend to agree.4 Indeed, cases of one type are often discussed by the court when explaining the legal test for cases of the other type. The case law for the two types is inextricably interwoven. One difference might be whether, for Duress by threats, the Duressor must nominate the crime. But if they do not, and the defendant picks the crime to avoid the threats, then the defendant can usually slide across to Duress of circumstances.5

  p.167

  However, I shall argue below for an important but hitherto unnoticed difference: with Duress by threats, the defendant can act upon another’s person or property; but with Duress of circumstances, the defendant can only act upon another’s property, and not also their person.

  There is no clean separation of language when it comes to Duress and necessity in criminal law. Various cases use, as interchangeable labels for the same defence, Duress of circumstances and necessity,6 sometimes even Duress by threats and necessity.7 Indeed, sometimes they mix the language to refer to ‘necessity by circumstances’,8 or ‘Duress by necessity’.9

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  Child Soldiers and the Defence of Duress under International Criminal Law

  • Windell Nortje, Noëlle Quénivet(Authors)
  • 2019(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  Such a proposal would be more in accordance with some of the case-law of the post-World War II (WWII) trials as reviewed and synthesised by Joyce in his excellent article on Duress, 107 and with the definition of Duress as understood by some national criminal law systems. 108 Not only are the circumstances deemed coercive—in our case the general environment and the child’s experience of the overall situation—but also the ‘actor actually acted by reason of fear or compulsion arising from those coercive circumstances’. 109 As Joyce further elucidates, the case-law distinguishes between situations whereby a person is put in a difficult situation and others whereby ‘a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose’. 110 Undoubtedly the case-law of post-WWII trials accentuates more the importance of the mental state of the person rather than the act itself, thus viewing Duress more as an excuse than a justification, and so adopting a less strict and conservative approach than the one espoused by the ICTY in Erdemović. It is the loss of actual freedom to choose how to act that is paramount in deciding, in the light of the coercive circumstances, whether there was indeed Duress. ‘Duress is an excuse that is premised on the idea that the actor is incapable of making a moral choice due to the overwhelming force of the threat […]’. 111 As an excuse, Duress ‘speak[s] of circumstances that diminish or destroy the operation of the actor’s free will such that concessions to human frailty require that the behaviour be forgiven’. 112 The narrative is thus constructed around the concepts of autonomy and choice

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  The Application of Contracts in Developing Offshore Oil and Gas Projects

  • Philip Loots, Donald Charrett(Authors)
  • 2019(Publication Date)
  • Informa Law from Routledge

    (Publisher)

  36

  The modern view is that Duress operates to deflect the will of the party rather than to vitiate consent. The effect of a finding of Duress is therefore always to make the contract voidable, not void.37 Pressure is illegitimate where it amounts to unlawful threats or unconscionable conduct, but a contract entered into as a result of unlawful threats or unconscionable conduct will be voidable only when the party had no commercial option but to submit.38

  However, even if a contract has been rendered voidable by the application of illegitimate pressure, the victim of economic Duress must take active steps to avoid the Contract; an affirmation of the Contract will nullify any claim for restitution.39

  [201] Finally, mention should be made of the topic of rescission or avoidance. Binding agreements vitiated by Duress of this kind are merely voidable, and not void. A claim in restitution in respect of money paid pursuant to a binding agreement resulting from such Duress requires rescission of the agreement. This accords with the principle that generally restitution does not operate in respect of an effective contract.

  [202] Also, even where a plaintiff claims money paid under a contract where the consideration has wholly failed, the plaintiff should elect to be entitled to recover the payment. The election may be made by the institution of proceedings to recover the money.40

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  Text, Cases and Materials on Contract Law

  • Richard Stone, James Devenney(Authors)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  It is not, however, in my view, necessary, nor would it be appropriate in the instant appeal, to enter into the general question of the kinds of circumstances, if any, in which commercial pressure, even though it amounts to a coercion of the will of a party in the weaker bargaining position, may be treated as legitimate and, accordingly, as not giving rise to any legal right of redress. In the instant appeal the economic Duress complained of was exercised in the field of industrial relations to which very special considerations apply . . .’ Lord Scarman (dissenting): ‘It is, I think, already established law that economic pressure can in law amount to Duress; and that Duress, if proved, not only renders voidable a transaction into which a person has entered under its compulsion but is actionable as a tort, if it causes damage or loss: Barton v Armstrong [1976] AC 104 and Pao On v Lau Yiu Long [1980] AC 614. The authorities upon which these two cases were based reveal two elements in the wrong of Duress: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted. There must be pressure, the practical effect of which is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent. The classic case of Duress is, however, not the lack of will to submit but the victim’s intentional submission arising from the realisation that there is no other practical choice open to him. This is the thread of principle which links the early law of Duress (threat to life or limb) with later developments when the law came also to recognise as Duress first the threat to property and now the threat to a man’s business or trade. The development is well traced in Goff and Jones, The Law of Restitution , 2nd edn (1978), chapter 9. The absence of choice can be proved in various ways, e.g.

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  Vitiation of Contracts

  International Contractual Principles and English Law

  • Gareth Spark(Author)
  • 2013(Publication Date)
  • Cambridge University Press

    (Publisher)

  A similar argument has been made in relation to English law, but it has already been submitted that this is neither the true, nor the appropriate, position for English law: see pp. 228–9, above. 142 UNIDROIT (2004), 105; Vogenauer and Kleinheisterkamp (2009), 445. 236 Duress } 175. When Duress by Threat Makes a Contract Voidable (1) If a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim with no reasonable alterna- tive, the contract is voidable by the victim. } 176. When a Threat is Improper (1) A threat is improper if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property, (b) what is threatened is a criminal prosecution, (c) what is threatened is the use of civil process and the threat is made in bad faith, or (d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient. (2) A threat is improper if the resulting exchange is not on fair terms, and (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or (c) what is threatened is otherwise a use of power for illegitimate ends. 10.3.1 Introduction Duress under the Restatement requires proof that the defendant engaged in unacceptable conduct 143 which impaired the complainant’s con- sent, 144 and it renders the impugned contract voidable. It is, in this sense, a classic example of my second category of vitiating factor. Similarly to English law and the three codes, the Restatement deals with all three classes of Duress: Duress to the person, Duress of good and economic Duress. However, it does not distinguish between the different classes, instead applying the same standard of impairment of consent to all forms of Duress.

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  Economic Torts and Economic Wrongs

  • John Eldridge, Michael Douglas, Claudia Carr(Authors)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  39 This chapter argues that lawful act Duress is well-suited to addressing the problematic banking practices uncovered by the Royal Commission. There is some controversy as to whether Duress is a tort. 40 There is dicta to the effect that while in some circumstances Duress may be actionable as a tort, but it is not a tort per se, nor does conduct need to be tortious to constitute Duress. 41 Arguably, the nature of Duress is that an ultimatum threatening wrongful harm wrongfully deprives the victim of his or her ability to choose. Beever posits that, with respect to economic torts, ‘[t]he wrong is not the causing of the loss, it is coercion ’. 42 The wrongdoing with which lawful act Duress is concerned is the coer-cion of the plaintiff by the defendant. It is worth considering whether those deeply concerned with legal taxon-omy might be more comfortable with the concept of lawful act Duress if it went by a different name. Bowley notes the very expression ‘lawful act Duress’ poses conceptual difficulties and, expounding an understanding of economic Duress, identifies what he refers to as the ‘tort of malicious bargaining, a form of inter-personal wrongdoing which … arises from the harmful application of illegitimate pressure’. 43 Since the concept of lawful act Duress began to emerge, the doctrine has been conceptualised as a broadening of Duress. 44 Bowley argues that ‘an explana-tion for the doctrine of Duress that focusses on illegitimate pressure unjustifiably attaches a contract law remedy, voidability, to tortious conduct’. 45 He posits that there are two types of economic Duress cases: (1) ‘Brigand Cases’, which involve ‘your money or your life’ ultimatums and have been recognised as constituting Duress for centuries; and (2) ‘Monopolist Cases’, which is what Bowley calls cases that are usually recognised as lawful act Duress cases.

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  Australian Restitution Law

  • Sharon Erbacher(Author)
  • 2012(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Chapter 9 Duress Overview

  Duress consists of illegitimate acts or threats against the person, property or economic interests of another. Payments made under Duress will be recoverable on a restitutionary action, both in the circumstance where the payment was made pursuant to a contract that has been avoided for Duress,1 and also where the payment is a non-contractual payment.2 Although many of the principles governing Duress have been developed in cases where the Duress led to the execution of a contract under which the payment was made, these principles equally apply to non-contractual payments.3 In relation to contractual payments, the orthodox rule is that restitution is not permitted in the face of a subsisting contract.4 Accordingly, the plaintiff should rescind the contract before bringing a claim in restitution.5

  The plaintiff must establish that the Duress caused the payment to be made.6 Causation in this context will be satisfied where the Duress was one of the reasons for the plaintiff making the payment.7 The plaintiff does not have to satisfy the ‘but for’ test;8 thus the claim will not be defeated by evidence that the plaintiff would have made the payment for reasons of a commercial or personal nature independent of the Duress. Further, the onus of proof is reversed in Duress cases, so that once the plaintiff establishes evidence of compulsion, the onus shifts to the defendant to disprove causation.9

  It is a well established general principle that a payment made merely in order to avoid litigation will not be recoverable on the basis of Duress.10 The ‘policy in favour of the finality of dispute resolution’ (David Securities Pty Ltd v Commonwealth Bank of Australia (1992), p 375 (see extract, p 110)), requires that the payer should have contested the matter at the time the demand for payment was made. If the payer elects to pay the money rather than to contest the claim, the money is irrecoverable.11

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  Crime, Reason and History

  A Critical Introduction to Criminal Law

  • Alan Norrie(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  Mitigation amounts to an abdication of the law’s self-claimed responsibility to govern human conduct by rules. In place of laws which state the extent and limits of the Duress defence, Lord Simon wishes to give judges, prosecution and state officials discretionary powers to allocate punishments in ways unregulated by law. The conflicts in Lynch are forced on the judges by the contradiction within a system based on individual fault attribution where for once the judgment of fault is socially contextualised, and where an overall desire for social control is balanced against a requirement of individual fault. In Howe, 30 the House of Lords followed Lord Simon’s suggestions with regard to the crime of murder, and in so doing produced a position on Duress that is unlikely to be satisfactory. The decision to exclude murder cases from the ambit of Duress does not do away with the anomalies produced by the decisions in Lynch and Abbott: it entrenches them at a different level. Criminal law is based on general rules, so that offence and defence categories cannot be unreflectively partitioned without serious gaps in the law’s logic opening up. Duress remains a full defence to a charge of causing grievous bodily harm with intent under the Offences Against the Person Act 1861, s 18. If the victim of the assault later dies, the accused has, in the absence of other issues such as loss of control or diminished responsibility, no defence to a charge of murder. The contingency of whether death occurs radically affects the accu- sed’s culpability. Similarly, if Duress is unavailable in murder cases, it is still apparently available in manslaughter cases. Availability of the defence accordingly depends upon the knife-edged boundary between these two offences, a boundary which, as we saw in Chapter 3, is both opaque and subject to shifts over time (see Milgate, 1988, 74).

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