Duress Flashcards
(21 cards)
Outline the types of behavior that will amount to duress.
(i) Physical force
(ii) Emotional force
(iii) fear of prosecution
(iv) marriage under duress
(v) Duress of goods
(vi) Economic duress
Furmston et al description of duress
The pressure of the big stick or the bottom line.
Void or voidable?
Although there is authority to the effect that duress renders a contract void (Barton v. Armstrong) McD & McD consider that the better view is that it renders the contract voidable (Byle v. Byle). As a result, a claim of duress may be lost through delay or approbation: it is not void ab initio.
Samuel v Wallow
The doctrines of duress and undue influence share a common objective.
ACC Bank
Charleton J clarified that the doctrine is kept within narrow confines. Charleton J distinguished between ordinary pressure and duress.
S.9 NFOAP Act 1997
Coercion as a criminal offence. Compelling another to do or abstain from doing something they are lawfully allowed to do, using violence or intimidation.
Class C fine (€2500)
Lessee of Blackwood v. Gregg
A 92-year-old man was abducted by relatives, and subsequently executed a deed in favour of one of those relatives. The jury decided that this abduction amounted to duress and this holding was not disturbed on appeal.
S. 11 NFOAP Act
Demands for payment of debt causing alarm.
Class C fine.
Griffith v Griffith
A man was threatened with dishonour by his parents (and the parish priest) if he did not marry a young girl he was alleged to have made pregnant during a camping holiday on Howth Head when he was 19 and she was 16. He was also threatened with criminal prosecution and imprisonment. It subsequently transpired that the girl’s child was not his.
Held: The contract of marriage was avoided on grounds of duress. (Interestingly, the court observed that the claim would have failed had he actually been the father, which may be a function of the age of the Griffith case.)
McC v. McC
A so-called “shotgun marriage” took place between two young people after the female became pregnant. O’Hanlon J held that “. . . the will, not merely of one partner but of both husband and wife was overborne by the compulsion of their respective parents and that they were driven unwillingly into a union which neither of them desired.”
Atlas Express
Delivery of basketware. Miscalculation, increase in fee demanded. The defendant agreed because it was heavily dependent on the contract and was unlikely to find another transport company, and was concerned that Woolworths might sue them if the cartons failed to be delivered.
Tucker J was satisfied that the defendant’s apparent consent was induced by illegitimate pressure. In any event, the court could find no consideration for the new agreement of an increased rate.
Rogers v Iaralco
Compromised figure reached on a dispute as to certain invoices. The plaintiff claimed he only agreed to the compromised figure based on cash flow concerns and his health, having undergone surgery.
O’Neill J found that the parties were ‘at arms length’ with no fidciary duty, that the plaintff had sufficiently recovered, and that wages were a universal concern: no duress.
The test for duress
- Illegitimacy of the threat
- Lack of reasonable alternatives
- Causation
Universe Tankships case
A workers’ union threatened to “black” the appellant’s vessel when it docked unless it was paid a sum of money.
The ship-owners agreed to contribute funds to the Union to avoid the ship being blacked. Then argued economic duress.
Held: Lord Diplock (majority) applied the standard test. Money was paid under economic duress.
Lord Scarman (dissenting) applied a different test, not directly related to economic duress: nature of the pressure and nature of the demand.
Lord Scarman’s four-step test in Universal Tanks
- did the person protest?
- was there an alternative course open to him?
- was he independently advised?
- after entering the contract, did he take steps to avoid it?
The nature of duress is compulsion. Submission due to a lack of alternatives.
Two basic elements: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted.
B and S Contracts v Victor Green Publications
- The plaintiff company agreed to erect stands at the Olympia trade exhibition for the defendant. Employees of the plaintiff company discovered plans to make them redundant after the exhibition and they insisted on severance pay before they would complete the job.
- This led the plaintiff to say that it would not be able to perform its duties under the contract unless the defendant paid part of the cost.
Griffiths LJ found that the defendant had no reasonable alternative and so duress was established. The option of suing, while obviously open to the defendant, was not practically feasible as it would have caused damage to the defendant’s reputation and exposure to suit from the exhibitors.
Walmsley v Christchurch
A party to a contract performing unsatisfactorily and then agreeing under some pressure to pay for the cost of remedying the problem was held to be legitimate commercial pressure.
Shivas v Bank of New Zealand
A bank insisting on security to guarantee the continued provision of finance was held to be legitimate commercial pressure.
Westpac Banking v Cockerill
The threat of a bank to appoint a receiver was held to be legitimate commercial pressure.
Times Travel (UK) Ltd. v. Pakistan International Airlines Corp
The Court of Appeal confirmed that a threat of lawful action made in good faith cannot amount to duress rendering voidable a contract entered into as a result of the threat.
Lawful act duress. Airline company wouldn’t renew its contract with the travel agents unless they abandoned any claim for outstanding commission.
Held (UKSC): two sets of circumstances have been acknowledged as potentially giving rise to lawful act duress:
- where D uses knowledge of C’s criminal activity (or that of C’s associates) and threatens to report it to obtain a personal benefit; and
- where D, exposed to a civil claim by C, illegitimately manoeuvres C into a position of vulnerability so that C waives its claims.
Held to be ‘hard-nosed commercial self-interest’ rather than lawful act duress. Needed an additional element, such as breach of duty or a misleading act, to become duress.
The court essentially said that lawful act duress exists but it would be very difficult to invoke it.
North Ocean Shipping v Hyundai Construction
A shipbuilder who had agreed to build a tanker for a fixed price threatened to refuse to complete the ship unless the plaintiff paid an extra 10% above the originally agreed price.
- The High Court held that this extra money had been procured through economic duress, but also that the plaintiff company had lost its right to have the contract set aside by virtue of affirmation. The plaintiff had received the ship in November 1974 but waited until July 1975 before seeking to recover the money.
- Once the company received the ship, they were no longer under duress.
- Mocatta J held that duress renders a contract voidable, not void ab initio.
