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Critical Essay Coursework Question - Birkbeck University of London

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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 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.

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. 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.

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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 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.

References

  • 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.
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