Duress And Undue Influence

Question 0

Physical duress

Answer 0

Obtained by physical violence or threat of violence. need not be of serious harm but explicit and has to be proved.
Barton v Armstrong - a threatened to have b killed unless he signed an agreement .

Question 1

Duress

Answer 1

One party has been forced into the contract by the use of illegitimate pressure. Also a common law doctrine and the contract will be made voidable

Question 2

Threat against property

Answer 2

Used to be that you couldn’t have a threat against a property but ‘the Evia luck’ - accepted that a threat to seize or damage another persons property or damage it will justify a claim of duress

Question 3

Economic duress

Answer 3

Test for this was set out in ‘Pao on v Liu yiu long’ there are 5 requirements

1. Illegitimate pressure
2. No practical alternative
3. Protest
4. Independently advised
5. Take steps to avoid it

Question 4

1. Illegitimate pressure

Answer 4

Lawful act can be duress
Can cash and carry ltd v Gallaher ltd - cigarettes sent to the wrong address so sent an invoice and threatened to withdraw credit facility unless it was paid

Question 5

2. No practical alternative

Answer 5

Must prove there was no other alternative other than to give into the pressure.
Universe sentinel - prevented ship from leaving port or demanded to pay large sum of money to charity

Question 6

3. Protest

Answer 6

Evidential factor, not absolute requirement
Atlas express ltd v kafco - agreement to trade for 6 months. A underestimated, so cost more but K wouldn’t change price. A sent empty van with note threatening to leave empty if didn’t agree. K would go broke without delivery

Question 7

4. Independently advised

Answer 7

Not an absolute requirement

Economic duress less likely if sought and still goes ahead.

Question 8

5. Take steps to avoid it

Answer 8

If they show they always intended to repudiate it, more likely.
If wait too long it’s seen that they have accepted and affirmed the contract.
The Atlantic baron case - buyers waited 8 months before applying to recover money.

Question 9

Undue influence

Answer 9

Where on person exploits their relationship (emotional/intellectual weakness) to persuade them into a contract

Improper pressure. Voidable at an equitable doctrine

Question 10

Barclays Bank Plc v o’brien

Answer 10

2 categories:

1. Actual undue influence
2. Presumed undue influence (evidential presumption of undue influence)

Question 11

1. Actual undue influence

Answer 11

Person abuses their position of power (relationship of dominance)
Williams v bayley - moneylenders threatened old father to be security for sons debts otherwise son prosecuted for fraud feared prison or transported to Australia so agreed.

Question 12

2. Evidential presumption of undue influence

Answer 12

Royal bank of Scotland v etridge change the name
2 categories:
1. Recognised relationships ( solicitor&client/Dr&patient)
2. Relationships that may be shown to have led to p.u.i.

Question 13

Turkey v awadh

Answer 13

This case clarified the requirement of p.u.i

1. Determine whether the facts raised p.u.i. a) was the party in a position to influence the other. b) would they still of entered contract if not pressured
2. They could rebut the presumption by establishing there was no abuse of trust.

Question 14

Rebutting the presumption

Answer 14

Recognise relationships cannot be rebutted.
Only rebut that undue advantage has been taken of that position of influence.
D to show they entered contract freely and aware of the invitation.

Question 15

Remedies

Answer 15

The agreement won’t be enforced by the courts

Possibility that the ‘affected’ part of the contract could be taken out.