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Critical Essay Coursework Question - Birkbeck University of London

Answer :

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.

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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 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 Armstrongin 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:

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

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