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English contract law has based its fundamental doctrine of existence on the idea of voluntariness and freedom of choice. A contract which lacks such choice is often said to be obtained by some form of duress. The only problem with this analogy is that, to some degree, most contracts are made under duress. Duress which is unavoidable. Firms often have a monopoly, like the utilities such as gas, electricity and water industries, where freedom of choice is non-existent. What distinguishes this from duress actionable by the courts is the courts interpretation of the legality of the duress.
Duress that is illegal in the common law has evolved into three main areas in the last twenty years but for much of its previous existence was defined on very narrow lines. Duress of the person, a long established principle, involved either threats of or actual violence to the contracting party. The violent act must be illegal but does not have to be the main reason or only reason the contract was entered into. It is for the defence to prove such threats made no contribution to the other parties will.
It must be stressed that the act must be illegal so a threat to sue would be justified if it were true. The principles of duress of the person have been given in a Privy Council case Barton-v-Armstrong which, although not a binding precedent, would be persuasive on the courts.This case has not answered the question of duress to a third party. Here we can look at the principles in criminal law which seem to suggest in R-v-Howe that a defence of third party duress is available but only on the facts of each individual case. The tort of intimidation may afford a ground for relief in this area.
The criminal law of blackmail could forward the equitable principle that no person should benefit from their own wrong doing. The question of whether the contract is void or voidable still rages on with no clear authority. Pao On-v-Lau Yiu Long suggests it is voidable thus giving a bona fide third party good title which must be more satisfactory to innocent buyers. The idea that the contracting party must be a free agent when entering a contract claims universal approval and it is only the degree of coercion that warrants legal debate. It will be for the courts to decide on an individual basis this question.
Duress of the person has stood the test of time and is fundamentally sound in its approach to contract law. It is unlikely that duress of the person will become a growth trade for lawyers mainly due to its unsubtle approach, the use of other forms of duress making an emergence in our modern society.Duress of goods has had a somewhat stuttered approach in the common law. Goff and Jones in The Law of Restitution (1966) found four areas of duress.
Duress of the person divided into two categories, money or goods (or services) paid on the spot and money or goods demanded in the future. The first being where money or goods were recoverable, the second a defence to enforcement of a contract. Duress of goods can be divided into the same areas but the outcome has been somewhat different. Where A had paid money because of the wrongful (illegal restraint as opposed to a lien on goods) refusal of B to surrender goods they could recover. This was the principle in the case of Astley-v-Reynolds where a pawn broker had demanded more money than was due. The principle was eloquently summed up by the judge in Carter-v-Carter when he said
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