Evolution of Doctrine of Duress in Law

This article discusses the evolution of the doctrine of duress in law, including its elements, forms, and illegitimate pressure in economic duress. It explores the concept of duress in contracts and the boundaries between acceptable and unacceptable pressure. The article also examines different forms of duress, such as duress of person, duress colore officii, duress of goods, and economic duress. It highlights the challenges in proving economic duress and the need for independent advice and protest against the contract. Desklib offers study material and solved assignments on this topic.

Law

Contents
INTRODUCTION...........................................................................................................................1
Evolution of Doctrine of Duress......................................................................................................1
Elements of Duress..........................................................................................................................2
Forms of Duress...............................................................................................................................2
Illegitimate pressure in economic duress.........................................................................................3
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
Duress can be determined as a situation in which a person carries out an act because of
violence, pressure or threat towards an individual. As per the view points of Black’s Law
Dictionary, duress is considered to be unlawful threat or coercion that is used in order to
minimise another to act that others would not. In other words, it is the weapon that enables
common law protect victim of improper pressure (Marks, Marks and Jackson, 2013). When a
contract is formed, then there are many terms and conditions that are included and these are
important for all the parties included to be followed. No party can force to get into a contract or
to fulfil any type of term. The court intervenes at the time when a party get into a contract due to
pressure that is considered to be unacceptable. For these terms which are unacceptable and
acceptable there is a thin difference that can get shifter overtime. All the boundaries that are
considered to be unacceptable pressure are pushed towards encompass different forms of other
pressure like economic pressure.
Evolution of Doctrine of Duress
There are people who make use of restrictive approach for economic duress as it is
considered to be more difficult to relief for the available on this ground. In order to reduce the
duress, there is use of conceptual framework as it generally stems from the laudable notion that
is required to be focused on contracting with another.
All the laws that were related with duress were considered to be threatened violence to
the person (Lub and et.al., 2012). Common laws for duress are assimilated to tort or crime.
However, all these categories were overlapped and this is the reason due to which it considered
to be developed much beyond the narrow scope towards the threatening that is attained for
personal violence. Apart from this equity is delivered with the promise that is made with
immoral or unethical use of superior bargaining position. On the other hand, inequality is the
equitable doctrine of pressure is the force made on another person in order to complete what is
not willing by a person to perform. However, it is identified that there is a duress that is created
by voidable contract at the time when it is threatened by the personal violence for duress of
goods (Qi and Chau, 2012). It was in the 18th century when economic duress began that also in
the single cases of detention or wrongful seizure of personal property. However, there are not
parallel developments in England that were developed. Common law distress was considered to
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be crude, obscure notion, ill defined and crude that is except in the cases of overt threats. When
involved in the court on frequent basis, then pressure have lacked sufficiently definition for the
effective control at the time when economic coercion in the marketplace as at issue (Walker and
Townley, C., 2012).
Elements of Duress
People get into a contract on regular basis and that also on daily basis and this is due to
the pressure that can be a kind or another. As per the case of Barton v Armstrong in the
life of finance and commerce there are various type of acts that are done
under pressure is considered to be liable (Rodwell and Gulyas, 2013). This is
required to be avoided towards the ground of duress, this means that all the
agreement will be vulnerable in order to attack the ground.
All the law that are included is required to be determined as a pressure
that is unacceptable and the stress is acceptable and so it can not be
considered as constitute duress. This way only possible when two of the
requirements that are needed to be sissified for the relief for the availability
on grounds duress (Olander and Norrman, 2012). It is important to have
compulsion towards the will for complainant and to and it is also required
that the pressure should be regard as law is not considered as legitimate. As
per one of the elements that are concerns the coercive effects that is made
on consent was truly given. Further, second element is considered to be very
important. It is the pressure that impairs complainant’s free exercise of
judgment that is required to be illegitimate. Further, this is concerned with
the quality of defendants conduct in exerting pressure (Li, Zhou and Zhang,
2015). It is important for defendants to be behave in such a way that makes
the impact of pressure affecting complainants are regarded as illegitimate.
Forms of Duress
As per the parameters of the doctrine, they were very narrow. In this, there was various
agreement which could be avoided for duress in which duress was considered to be form of
threat for an individual (Hall, Critcher and Roberts, 2013). There are different forms of duress
and some of them are as follows:
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Duress of Person: This is considered or included in the violence of a person or
imprisonment or threats of violence that were threatened or actual. It is important that the threat
is required to be focused at claimant. All the threat that are focused on claimant and the threat
that are against employees have been held constitute duress (Kwock, James and Tsui, 2013).
Apart from this, it is also stated that threat from any other person is also enough for the condition
of complainant genuinely for the situation is another person is injured. This can be understood
with the help of example of Antonio v Antonio.
Duress colore officii: This is the type of condition in which illegitimate pressure is
formed at an unlawful demand towards the payment that is made by public official. It is
important to draw distinction among cases for the situation where amount is paid by complainant
so as to obtain service from the public official (Gorbatyuk, Van Overwalle and vanZimmeren,
2016). Further, there is another situation in which the complainant has already paid all the
amount through tax or similar impost. As p the first category court is required to readily infer
that claimant has no way but he/she is required to submit demand of the public official. This was
the condition that happened in the case of Morgan v. Palmer.
Duress of goods: It is the threat for damage or destroy property may raise the condition of
duress. This is similar for the threat to seize (Honigsberg, Katz and Sadka, 2014). All these
aspects were considered to be common but with time there were changes made when submission
of defendant’s illegitimate pressure and many pay were entered into an agreement so as to
recover his goods that were determined by defendants. It consists of example of Astley v.
Reynolds. This was the case in which money were sent under duress of
goods. Further, availability of legal remedy do not had any type of reaching
out for conclusion as the payment causes was by illegitimate pressure.
Economic duress: There are some of the forms of pressure that are not
related with person (Lub and et.al., 2012). Further, it is not limited seizure or
withholding of goods. In conditions when economic duress main question
that claimant had adequate alternatives or it may not have. This is occurred
in the case of North Ocean Shipping Company Limited v. Hyundai
Construction Co. Ltd.
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Illegitimate pressure in economic duress
As per the traditional aspect, duress rendered a contract that was voidable only is the
condition if it is physical duress. However, in accordance with the decision taken in the case of
Pao On v. Lau Yiu Long, the condition of economic duress was recognised. It was found that
there were in total two different type of essential ingredients for voiding a contract and these are
as follows:
 It is required to have illegitimate pressure
 It is important to have the pressure a significant cause of claimant entering into contract.
For all the requirement that were mentioned there are problems that arise (Marks, Marks
and Jackson, 2013). The contract is required to be developed in such a way that all the parties
involved in the process is able to consider the business in such a way that they are able to
determine the terms and conditions that are included. All the parties are required to be free and
conscious about the rights that they have. Under pressure, it becomes difficult to carry out the
contract in effective manner.
It is important the above mentioned two of the limbs is required to be proven so as to
claim for economic duress (Honigsberg, Katz and Sadka, 2014). However, there was a
disagreement whether there are third standalone elements that are needed to be victim so they are
able to show that they did not had any type of reasonable alternative but they have to agree to the
contract and all the terms that are included in it.
This is considered to be a common type of practice to subject another to high commercial
pressure in which negotiation take place in a contract (Gorbatyuk, Van Overwalle and
vanZimmeren, 2016). Further, it can be stated that there is a fine line among actual economic and
negotiations duress. However, it is identified that there are not clear guidelines as to where that
line is drawn. As per the English system does not have concern with the process of commercial
bargaining but it can be used to measure circumstances in which pressure were being exceeded.
Apart from this, economic duress is totally new type of mechanism that is used by the court to
distinguish between orderly commercial bargaining and illegitimate pressure (Kwock, James and
Tsui, 2013). Before any type of contract is to be formed, then it requires that all the parties
included in the contract to discuss that details or the information that should be included. When
in the condition that does not include all the parties under contract, then it causes a type of
pressure that is faced. From doctrine of consideration, the doctrine of economic was drawn out.
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With this respect, extra consideration, extra demands are required to be made for all contract and
these can be stated to be voidable (Hall, Critcher and Roberts, 2013). The issues related with
existing duty rule were needed to be made promises that are paid in all the type of circumstances.
Even in the conditions when there are absolute legitimate and reasonable to pay.
As per the case of Universe Tankships Inc of Monrovia v International Transport
Workers Federation explanation was given for the duress as it does not leave a party without any
choice. However, it enables to put in the position in which no other practical solution is made
available (Li, Zhou and Zhang, 2015). Further, it was added that duress victim understand and
accept the contract terms internationally at the time when they are being coerced. Moreover, it is
also important for the parties to claiming signing under duress so as to prove that there is a
requirement of indeed no other alternative (Olander and Norrman, 2012). Further, to make
acceptance for the situation that provides under illegitimate pressure. Further, they also need to
protest against such type of proposal and it also required to take up appropriate steps in order to
avoid the deal. In the case of Maskell v Horner, Lord Scarman stated that to recognize whether
plaintiffs acted various type of conditions in which there were true consent that were never given
to the party and they left with not practical solution and this also includes suitable legal measure.
Apart from this, it is also important that for the claimant to seek independent advice and to show
after getting entered to the contract (Rodwell and Gulyas, 2013). Another case that happened
among B & S Contracts & Design Ltd v Victor Green Productions Ltd. in the year 1984, all the
defendants did not had any type of alternative but in order to pay off the demanded amount they
were facing significant losses and to take up the plaintiff to the court for any type of breach of
contract that were caused. As per the findings that were made by court, it was identified that
there were no duress. Further, it was also noticed that there was a threat faced for not to break the
contract unless money is paid (Walker and Townley, C., 2012). This is a type of pressures that
are given by a party under contract and is a duress.
Duress related with economy is one of the most complicated and unclear areas in the law
as it are difficult to judges to establish essential factors that cause the issue of duress. Further, it
also includes factors like sort of environment that was agreed when it was signed, the contract
affirmed by victim party, etc. When all these type of factors are also considered, then it becomes
difficult to make appropriate evaluation and thus there is a duress identified (Qi and Chau, 2012).
When these are an increase in reliance on adequacy of the consideration, there is a case in which
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functional criterion that is identified for the adjudicating for the fairness of bargains. Further, it is
important that proper notice is made by people for the situation that is faced. Notice is required
to be made of the past reluctance for interfere that was with the agreement of grounds of
economic duress. These are considered to be the cases that causes real duress and can also
mislead the condition that are faced (Lub and et.al., 2012). The individuals who possess power
over the other parties under contract, then it become difficult for the court to get appropriate
information and in making suitable findings.
Perceptible shift that is identified in the economic duress in order to make is required to
be will based on the emphasis to a moral based one in Barton, Universe Tankships and Lobb who
raised the issue related with Illegitimacy which is a sophisticated economic duress (Marks,
Marks and Jackson, 2013). When there are involvements for any type of illegitimacy, then it
becomes important to devise a working definition. Further, it also provides details towards what
are the aspects that are needed to be considered. This way main focus is made on gathering
information and in following the aspects that are required to be covered.
CONCLUSION
There are some of the findings that are made by judicial for economic duress with easy
and simple. Further, coercion related with economic is a very nature is often insidious and subtle.
There will be many different type of cases in which victims of duress subsequently attempts to
exploit their submission towards the threat that are developed as a cause of deliberate business
choice that can fail. Pressure on a person can cause serious issues and this is considered to be un
ethical and unlawful. There are different types of situations in which people find it difficult to
continue or follow all aspect of contract due to high pressure that is made by other parties. All
the cases that happened were causing serious problem for the carrying out the contract in
effective manner.
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REFERENCES
Books and Journals
Gorbatyuk, A., Van Overwalle, G. and van Zimmeren, E., 2016. The Role of IP law and Contract
Law in the Allocation of IP Ownership in Coupled Open Innovation Processes’. IIC-
International Review of Intellectual Property and Competition Law.
Hall, S., Critcher, C. and Roberts, B., 2013. Policing the crisis: Mugging, the state and law and
order. Palgrave Macmillan.
Honigsberg, C., Katz, S. and Sadka, G., 2014. State Contract Law and Debt Contracts. Journal
of Law and Economics. 57(4). pp.1031-1061.
Kwock, B., James, M. X. and Tsui, A. S. C., 2013. Doing business in China: What is the use of
having a contract? The rule of law and guanxi when doing business in China. Journal of
Business Studies Quarterly. 4(4). pp.56.
Li, M., Zhou, L. and Zhang, C., 2015. The Effect of Labor Contracts on the Psychological
Contract Dynamics among Chinese Migrant Construction
Workers. ANTHROPOLOGIST. 21(1-2). pp.291-299.
Lub, X. and et.al., 2012. Different or alike? Exploring the psychological contract and
commitment of different generations of hospitality workers. International Journal of
Contemporary Hospitality Management. 24(4). pp.553-573.
Marks, R.J., Marks, R.J. and Jackson, R.E., 2013. Aspects of civil engineering contract
procedure. Elsevier.
Olander, M. and Norrman, A., 2012. Legal analysis of a contract for advanced logistics services.
International Journal of Physical Distribution & Logistics Management. 42(7). pp.673–
696.
Qi, C. and Chau, P.Y., 2012. Relationship, contract and IT outsourcing success: Evidence from
two descriptive case studies. Decision Support Systems. 53(4). pp.859-869.
Rodwell, J. and Gulyas, A., 2013. The impact of the psychological contract, justice and
individual differences: nurses take it personally when employers break promises. Journal
of Advanced Nursing. 69(12). pp.2774-2785.
Walker, M. and Townley, C., 2012. Contract cheating: a new challenge for academic honesty?.
Journal of Academic Ethics. 10(1). pp.27-44.
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