Duress

Question 1

What are the different types of duress?

Answer 1

• to the person
• to goods
• economic

Question 2

What is duress to the person?

Answer 2

Actual or threatened violence

Question 3

What is the test to show duress to the person?

Answer 3

physical threats contributed to the decision to enter into contract

Question 4

Who is the burden of proof on to show duress?

Answer 4

Person who exerted pressure to show that it didn’t contribute to the decision

Question 5

What is duress to goods?

Answer 5

Threat to seize owner’s property or damage it

Question 6

What is the test to show duress to goods?

Answer 6

Agreement wouldn’t have been made if no duress

Question 7

What are the two types of duress?

Answer 7

Economic duress
Undue influence

Question 8

What is economic duress?

Answer 8

Pressure-
A) practical effect of compulsion/lack of choice
B) Illegitimate
C) Significant cause

Question 9

What is the test for significant cause for economic duress?

Answer 9

But for test

Question 10

What is the legal effect of duress on contract?

Answer 10

Voidable

Question 11

What is the remedy for contracts made under duress?

Answer 11

Rescission unless affirmed

Question 12

When may the courts say a contracts is affirmed?

Answer 12

After duress ceased, party fails to challenge in timely manner/acts in compliance with terms

Question 13

What does lack of practical choice mean?

Answer 13

No practical alternative but to acquiesce to the demand

Question 14

What are the factors considered when deciding if economic duress was illegitimate?

Answer 14

• Actual or threatened breach of contract
• Pressure applied in good or bad faith
• Did victim protest
• Did victim affirm

Question 15

What should happen if an act of coercion looks like duress and undue influence?

Answer 15

Bring action on both grounds

Question 16

What was the definition of undue influence in RBS v Etridge?

Answer 16

Persons consent to a transaction produced in such a way that the consent ought not fairly to be treated as an expression of their free will

Question 17

What are the two types of undue influence?

Answer 17

• Overt acts of improper pressure or coercion
• One party has influence or ascendancy over the other and takes advantage of it

Question 18

What is the test for overt acts of improper pressure where the behaviour was deceitful or fraudulant?

Answer 18

It was a factor in deciding

Question 19

What is the test for overt acts of improper pressure where the behaviour was not deceitful or fraudulant?

Answer 19

But for test

Question 20

What is the common scenario where one party has influence or ascendancy over the other and takes advantage?

Answer 20

spouse (business owner) enters agreement where other spouse’s share in matrimonial home is used as a security for a loan to the business

Question 21

What are the elements of undue influence?

Answer 21

• person placed trust and confidence in other
• person abused that trust in seeking consent

Question 22

What is another common relationship where there may be no need to show they placed trust and confidence in the other?

Answer 22

very vulnerable/dependant

Question 23

What is an irrebuttable presumption of undue influence?

Answer 23

Court wont allow an argument that there wasnt influence

Question 24

What are the irrebuttable presumption relationships?

Answer 24

• Parent and (minor) child
• Guardian and ward
• Trustee and beneficiary
• Solicitor and client
• Doctor and patient

Question 25

What is the proof to show advantage taken of a relationship of trust and confidence?

Answer 25

transaction which requires explanation

Question 26

What happens if a person claiming undue influence can show a relationship of trust/irrebuttable presumption and a transaction which requires explanation?

Answer 26

Burden shifts to wrongdoer to prove no undue influence

Question 27

What is a transaction that requires explanation?

Answer 27

does not fit with what would usually be expected in the relationship

Question 28

What is the equitable remedy for undue influence?

Answer 28

Setting aside

Question 29

What are the two rules to remember regarding equitable remedies for undue influence?

Answer 29

• delay defeats equity
• those who come to equity must have clean hands

Question 30

What must be shown before considering whether a contractor had constructive notice of undue influence by a third party?

Answer 30

Undue influence

Question 31

When will a creditor be put on notice of undue influence to a wife shown in Barclays v O’Brien?

Answer 31

• transaction on face vaslue not to financial advantage of wife
• substantial risk that husband has committed a legal/equitable wrong that entitles wife to set aside

Question 32

How can a creditor take reasonable steps to satisfy that a wife’s agreement has been properly obtained?

Answer 32

• confirmation from a solicitor
• provide solicitor with sufficient information
• if aware (constructively or actually) that wife may be misled, must tell solicitor

Question 33

What should a solicitor warn a wife about when advising on acting as a surety?

Answer 33

their involvement may be relied upon by the bank to counter allegations

Question 34

What is the core minimum advice a solicitor should give when advising a wife on acting as a surety?

Answer 34

a. Explanation of documents and practical consequences including losing home
b. Seriousness of risk, duration and terms of the security and wife’s assets/means
c. The fact the wife has a choice

Question 35

What did Etridge extend undue influence by a third party to?

Answer 35

non commercial relationships