DURESS

DURESS TO THE PERSON

Barton v Armstrong [1976] AC 104
A (the former chairman of a company) threatened B (the managing director) with death if he did not agree to purchase A's shares in the company. There was some evidence that B thought the proposed agreement was a satisfactory business arrangement both from his own point of view and that of the company. B executed a deed on behalf of the company carrying out the agreement. He sought a declaration that the deed was executed under duress and was void.
The Privy Council held that if A's threats were "a" reason for B's executing the deed he was entitled to relief even though he might well have entered into the contract if A had uttered no threats to induce him to do so. The onus was on A to prove that the threats he made contributed nothing to B's decision to sign.

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DURESS TO GOODS

Skeate v Beale (1840) 11 Ad&El 983
A tenant who was threatened with the levying of distress by his landlord in respect of rent owed, promised to pay part immediately and the balance within one month. When the tenant failed to pay the balance, as agreed, the landlord brought an action for the balance. The tenant pleaded that the distress was wrongful in that a smaller sum only was owed. He had consented to the agreement because the landlord threatened to sell the goods immediately unless the agreement was made. This plea of duress was rejected.


Maskell v Horner [1915] 3 KB 106
Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. These tolls were, in fact, demanded from him with no right in law. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made over a considerable period of time. Lord Reading CJ stated that if a person pays money, which he is not bound to pay, under a compulsion of urgent and pressing necessity or of seizure, he can recover it as money had and received under the law of restitution.
It was held that there was a wider restitutionary rule that money paid to avoid goods being seized or to obtain their release could be recovered. Further, it was held that in the present case there was a compulsory agreement to enter into, whereas in Skeate the agreement was entered into voluntarily.
NOTE: The distinction between the Skeate v Beale line of cases and the decision in Maskell v Horner is hard to follow, and it has been pointed out that the peculiar result would follow that although an agreement to pay money under duress of goods is enforceable, sums paid in pursuance of such an agreement by the coerced can be recovered in an action for money had and received under the law of restitution.


The Sibeon and The Sibotre [1976] 1 Lloyd's Rep 293
Kerr J stated: "if I should be compelled to sign a lease or some other contract for a nominal but legally sufficient consideration under an imminent threat of having my house burnt down or a valuable picture slashed through without any threat of physical violence to anyone, I do not think that the law would uphold the agreement … The true question is ultimately whether or not the agreement in question is to be regarded as having been concluded voluntarily."

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ECONOMIC DURESS

The Sibeon and The Sibotre [1976] (above)
The charterers of two ships renegotiated the rates of hire after a threat by them that they would go bankrupt and cease to trade if payments under the contract of hire were not lowered. Since they also represented that they had no substantial assets, this would have left the owners with no effective legal remedy. The owners would have had to lay up the vessels and would then have been unable to meet mortgages and charges - a fact known by the charterers. The threats themselves were false in that there was no question of the charterers being bankrupted by high rates of hire.
Kerr J rejected the earlier confines of duress. But, he said, in a contractual situation commercial pressure is not enough to prove economic duress. The court must, he said, be satisfied that the consent of the other party was overborne by compulsion so as to deprive him of his free consent and agreement. This would depend on the facts in each case. He considered that two questions had to be asked before the test could be satisfied: (1) did the victim protest at the time of the demand and (2) did the victim regard the transaction as closed or did he intend to repudiate the new agreement? Kerr J considered that the owners would have been entitled to set aside the renegotiated rates on the ground of economic duress, but that on the present facts their will and consent had not been 'overborne' by what was ordinary commercial pressures.


The Atlantic Baron [1979] QB 705
The builders of a ship demanded a 10% increase on the contract price from the owners largely because the value of the US dollar fell by 10%, or threatened not to complete the ship. The owners paid the increased rate demanded from them, although they protested that there was no legal basis on which the demand could be made. The owners were commercially compelled to pay since, at the time of the threat, they were negotiating a very lucrative contract for the charter of the ship being built.
Mocatta J decided that this constituted economic duress. The illegitimate pressure exerted by the building company was their threat to break the construction contract. Where a threat to break a contract had led to a further contract, that contract, even though it was made for good consideration, was voidable by reason of economic duress. However, the right to have the contract set aside could be lost by affirmation. The plaintiffs had delayed in reclaiming the extra 10% until eight months later, after the delivery of a second ship. This delay deafeated the plaintiff's claim for the rescission of the contract to pay the extra 10%.