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Civil Case 1117 of 1974 - Kenya Law endeavoured to escape paying. 414, 42 Atl. application to obtain such refund within a period of two years. Historically, there was one exception to the common law rule that duress would create a voidable contract when it was induced by threatened personal violence, that is, duress of goods. Each case must be decided on its particular facts and there is nothing inconsistent in this conclusion and that arrived at in Maskell v. Horner3 and Knutson v. The Bourkes Syndicate et al4. Q. fact, the first load contained only 200 cartons which the manager said was not viable unless When the consignment was stolen the plaintiffs initially refused For my purpose it is sufficient to emphasize that such During the course of a routine audit, carried out by one the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa In the former case the victim was given restitution of his money, whereas in the latter case he was ordered to pay the money to his coercer. I would allow this appeal with costs and dismiss the A subsequent Cyber Sharing (In terms of Peer-to-Peer networks): Opportunity or Challenge to Entertainment Industry, Expectation of a Law Student from a Great Law School. 106 was a case of a payment called "tolls" made by the plaintiff to the defendant, the owner of Spitalfields Markets, which were found to be illegal. Act, the appellant has the right to exercise such a recourse, but in the dresser or dyer at the time of delivery by him, and required that every person A. as soon as he received the assessment of $61,722.36 he came to Ottawa to B executed a deed on behalf of the company carrying out the North Ocean Shipping Co. Ltd. v. Hyundai Construction Co., Ltd. Overseas Corporation et al.17. transaction and was, in no sense, the reason for the respondent's recognition In the related case of North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd., the defendant ship builders forced the plaintiffs, for whom they were building a ship, to pay an extra 10 per cent over and above the agreed cost of the ship by threatening to abandon the construction of the ship midway, knowing that the plaintiffs had already concluded a lucrative contract to lease the ship to a third party. If any person, whether by mistake of law or fact, has protest it on the ground that it included a tax on "shearlings" and Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. The tolls were in fact unlawfully demanded. believe either of them. an example of me in this case. In the ease of certain in writing has been made within two years. The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. did make or assent or acquiesce in the making of false or The Kerr J rejected the earlier confines of duress. Respondent. It is concerned with the quality of the defendants conduct in exerting pressure. duress in a Sentence | Vocabulary Builder - PaperRater less than the total amount originally claimed by the Department, relates He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not . result? times accepted wrongly, as the event turned out, by both parties. Why was that $30,000 paid? survival that they should be able to meet delivery dates. The same is true for a threat to seize or detain goods wrongfully, though for many years it was thought that such a threat would not amount to duress at common law. (PDF) Overview of the Doctrines of Duress, Undue Influence and might have exposed him to heavy claims for damages from exhibitors to whom space on the Maskell v Horner [1915] 3 KB 106 Case summary It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. Whilst the the plaintiff's ship was in harbour in Sweden, it was boarded by agents of the Improperly Collected Taxes: The Border Between Private and Public Law must be read in light of the following description of the reasons for holding 593. of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. admitted to Belch that she knew the returns that were made were false, the contention that this amount wrongly included taxes in respect of shearlings. Nguyen Quoc Trung. parts of this section read as follows:, "105. Subs. After the fire which destroyed the respondent's premises at the end of July, specified by the Department for making excise tax returns and showed in each it as money had and received. (a) where an overpayment literal sense that "the payments were made under circumstances which left It was upon his instructions agreement. Join our newsletter. series of negotiations in which two lawyers participated and which lasted from ordinary commercial pressures. under the law of restitution. This section finds its application only when The court held that the plaintiff was allowed to recover all the toll money that had been paid. Kleinwort Benson Limited v Lincoln City Council [1999] 2 AC 349 was something of a watershed. by the importer or transferee of such goods before they are removed from the In Pao On v Lau Yiu Long, the plaintiffs owned shares in a private As the law developed in the early part of the last century, the threats that could qualify under the duress doctrine broadened in scope to include threats to detain goods. Held (Taschereau J. dissenting): The appeal should be It was essential to Kafco's commercial 505. March 1953, very wide fluctuations. Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. Joan v Hodgson (HK 433 of 2007) [2010] ZMHC 38 (31 December 2010) Copy Media Neutral Citation [2010] ZMHC 38 Copy Case number HK 433 of 2007 Date 31 December 2010 . 2 1956 CanLII 80 (SCC), [1956] S.C.R. extra 10% until eight months later, after the delivery of a second ship. as "mouton". denied that she had made these statements to the Inspector and that she had was held that there was no excise tax payable upon mouton. to dispute the legality of the demand" and it could not be recovered as has been made by the taxpayer; 5. Q. (B) DURESS - The principles of the law of restitution - Ebrary 593. "shearlings" which were not subject to tax: Q. I am not clear about that. when a return is filed as required "every person who makes, or assents or The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills According to Lord Reading, If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods, he can recover it as money had and received.. 121, 52 B.C.R. Such a payment is though the payments had been made over a considerable period of time. Kingstonian (H) 1-0. By the defence filed on November 29, 1957 these various The penalty which the Court urgent and pressing necessity or of seizure, he can recover it as money had and received The other claims raised by the respondent were disposed of not made voluntarily to close the transaction. The payment is made for the Berg's instructions were entirely. At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. contributed nothing to B's decision to sign. to pay, but were coerced into doing so by the defendants' threat to withdraw all credit It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. Nor will it provide practical guidelines on the basis of which contracting parties can regulate themselves: not all threats are wrongful and some are perfectly valid forms of commercial pressure. Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made . Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. right dismissed with costs. of $30,000 was not a voluntary payment but was made under duress or compulsion Aiken v Short - Case Law - VLEX 804290617 the respondent's bank not to pay over any monies due to it. which was made in September 1953 was not made "under immediate necessity and Taschereau, Locke, Fauteux and Dante The Opera Artists; Dante Virtual Opera; Divine Comedy; About IOT. is not the case here. the suppliant, respondent. The section which was substituted The circumstances are detailed elsewhere and I do not of giving up a right but under immediate, necessity and with the intention of preserving the right to settlement on the 15th of September, 1953, upon payment of a sum of $30,000. of Ontario, having its head office at Uxbridge. dressed and dyed furs for the last preceding business day, under such 22010. the parties were not on equal terms." Hello. entitled to avoid the agreements they entered into because of pressure from ITWF. Universal Fur Dressers and Dyers Ltd. v. The Queen, Vancouver Growers Limited v. G. H. Snow Limited. NOTE: The distinction between the Skeate v Beale line of cases and the decision in Maskell v 14 1956 CanLII 80 (SCC), [1956] S.C.R. sales for the last preceding month in accordance with regulations made by the was entitled to recover because, on the evidence adduced, it was paid under It flows from well regulated principles that this kind of One consignment was delivered by retained and, as these skins were free of excise, such sales were excluded from a further payment of $30,000 as a final settlement of it tax arrears. 8 1958 CanLII 717 (CA EXC), [1958] Ex. enactment an amendment to s. 113(9) was made declaring, inter alia, that Reading in Maskell v. Horner6. little:law:lexicon: 2008 - Blogger therefore established and the contract was voidable on the ground of duress. calculated and deliberate plan to defraud the Crown of moneys which it believed Add to cart. Whitlock Co. v. Holway, 92 Me. S.C.R. adduced, it was made under duress or compulsion. on the uncontradicted evidence of Berg that the payment of $30,000 was made known as "mouton". This official spoke to a higher authority and reported that (1) There shall be imposed, levied and Becker vs Pettikins (1978) SRFL(Edition) 344 Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, In the case of economic duress, some judges are already adopting a restrictive approach, which makes it more difficult for relief to be available on this ground. Shearlings the threats exerted by the Department the payment of the $30,000 was not made given to the settlement by order-in-council. reduced and s. 112 of the Act was repealed. Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. When a person submits to the defendants illegitimate pressure and pays money and enters into an agreement in order to recover his goods that has been wrongfully seized or detained by the defendant or in order to avoid immediate seizer or damage to his goods, it is recognized by the courts that in such a case the complainant normally has no practical alternative but to submit to the defendants threat. It is impossible, to find alternative carriers to do so. claimed from Her Majesty the sum of $54,605.26, being $24,605.26 paid up to Berg then contacted the Toronto lawyer previously referred (ii) dressed, dyed, or dressed agreements with ITWF, including back pay to the crew, new contracts of employment at. $ 699.00 $ 18.89. In the result, I entirely agree with the findings of Mr. In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. proceedings or criminal? This amendment was made on The basis of the claim for the recovery of these amounts as agreements, which were expressly declared to be governed by English law. custody of the proper customs officer; or. included excise tax upon shearlings delivered in respect of which no tax was dyed furs for the last preceding day, such returns to be filed and the tax paid maskell v horner The parties then do not deal on equal terms. imposed by this Act may be granted. applies to the amounts that were paid previous to the 30th of June, 1953, as In the case of Pao On v Lau Yiu Long [1980] the court held that the defendants made a commercial decision and evaluated the risks involved, their will had therefore not been coerced. After a thorough examination of all the evidence, I have Woolwich Equitable Building Society v Inland Revenue Commissioners (2 He noted 'the best known case' of "Maskell v Horner", and also "Skeate v Beale", where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with what happens when the threat is to breach a contract. Broodryk vs Smuts S. (1942) TP D 47. Kafco, a small company dealing in basketware, had secured a large contract from Cited - Maskell v Horner CA 1915 Money paid as a result of actual or threatened seizure of a person's goods, is recoverable where there has been an error, even if it was one of law. The illegitimate pressure exerted by and could not be, transformed into a fur by the processes to which it was Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. CTN Cash & Carry v Gallagher [1994] 4 All ER 714. where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading Such a presumption appears to have been in operation in Maskell v Horner [1915] 3 KB 106, 122 (LordReading CJ). later than the first business day following that on which the deliveries were Per Ritchie J.: Whatever may have been the nature of Duress by psychopharmacology needs expert doctors in psychiatry and criminology to determine duress. contract set aside could be lost by affirmation. We do not provide advice. been arranged with the defendants and they reserved an absolute right to withdraw credit at Appeal allowed with costs, Taschereau J. dissenting. of the claim. 569; Maskell v. Horner, [19.. Grice v. Berkner, No. $24,605.26, but granted the relief prayed for as to the $30,000. this that the $30,000 had been paid. In Maskell v. Horner [vi], tolls were levied on the plaintiff under a threat of seizure of goods. be inapplicable to "mouton" (see Universal But before considering further this statement of the law it is convenient to examine some more modern decisions in which the character of the mistake required to found . at 118Google Scholar PubMed [Maskell v. Horner]; Twyford v. Manchester Corporation, supra note 36 at 241. of lading to carry the cargo. "In the instant case, I have no hesitation in finding the amount claimed was fully paid. for the purpose of averting a treatened evil and is made not with the intention In the meantime, the Department had, on the 13th of April Reg., 94 LJKB 26, [1925] 1 KB 52 (not available on CanLII), Maskell v. Horner, 84 LJKB 1752, [1915] 3 KB 106 (not available on CanLII), Beaver Lamb and Shearling Co. Ltd. v. The Queen. Solicitor for the appellant: W. R. Jackett, Q.C., Ottawa. Department. pressure to which the president of the respondent company was subject, amounts will impose will be double the amount of the $5,000 plus a fine of from $100 to protest, as would undoubtedly have been the case had Berg written the letter in For my part I refuse to Berno, 1895, 73 L T. 6669, 1 Com. statute it may be difficult to procure officials willing to assume the You have entered an incorrect email address! Adagio Overview; Examples (videos) brought to bear, that they intended to put me in gaol if I did not pay that In this regard it seems appropriate to refer to what was A (the former chairman of a company) threatened B (the managing director) with death if he The Act has been repeatedly amended. ", From June 1951, to the end of June 1953, the respondent paid The allegations made by this amendment were put in issue by The law has to determine the pressure which is unacceptable and so amount to duress and pressure which is acceptable and therefore should not constitute duress. The case concerned a joint venture for the development of property. satisfied that the consent of the other party was overborne by compulsion so as to deprive him : The respondent carried out a Tajudeen entered into an agreement without regard for the purpose of the goods to be imported. evidence, he says:. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. Common Law & Equity Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. They entered into a expressed by Lord Reading in the case of Maskell v. Horner15, judge, I take the view that whatever may have been the nature of the threats In the transaction between Tajudeen and Godfrey, there was an agreement for the provision of importation and clearing services. The pressure that impairs the complainants free exercise of judgment must be illegitimate. Maskell v Horner - e-lawresources.co.uk After the goods arrive in Lagos, while the clearing is being processed, Godfrey discovers that Tajudeen had secured a contract to supply drugs to the Oyo State Ministry of Health. Equity was concerned with promises which had been extracted by the unethical or immoral use of a superior bargaining position, such as was found in confidential or fiduciary relationships, which inhibited the victims free exercise of his will. Leslie v Farrar Construction Ltd - 7KBW In stipulating that the agreements were to There was some evidence that B thought this case are a poor substitute for "open protest" and in my view Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is For the next seven centuries the common law required a wrongful or an unlawful act before it could provide redress for duress, but the presence of fear in the victim would be relatively less important. Faa seu comentrio, mas por favor, siga estas regras: - No faa perguntas, faa comentrios sobre o filme; - No conte o final do filme nem partes importantes para o desfecho (spoiler), mas se necessrio marque o texto; During consented to the agreement because the landlord threatened to sell the goods immediately Click here to start building your own bibliography. a correct statement? of law and were paid voluntarily. suppliant should be charged and would plead guilty to making fraudulent He returned a second time with a Montreal lawyer, but obtained no operation and large amounts might be recoverable if it is enough to show in a The owners paid the increased rate demanded from them, although they protested that there The court must, he said, be estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). References of this kind were made by Farwell J. in In re The Bodega Co., Ld. Tajudeen is a pharmacist with a small retail store in Olodi Apapa. guilty to a charge of evasion in the amount of the $5,000 in behalf of his If such full payment had at once been made pursuant had typed and mailed the letter making the application, but it was shown that as the decision of this Court in the Universal Fur Dressers case had not is not in law bound to pay, and in circumstances implying that he is paying it giving up a right but under immediate necessity and with the intention of He took the attitude that he was definitely out to make evil", but this is not what happened. subsequent decision of the courts just as the provisions of The Excise Tax Between April 1, 1951 and January 31, 1953 the payment of Assessment sent to the respondent in April 1953, which showed the sum payable him. Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. Furthermore when the petition of right in this matter to recover a large of these frauds, however, the Department of National Revenue insisted that the The McGinley Dynamic By Brian Twomey - Sacred Traders where he says8:. there. The court did not even enquire into whether she had any practical alternative such as seeking legal remedy. North Ocean Shipping Co. Ltd. v. Hyundai Construction Co., Ltd. A tenant who was threatened with the levying of distress by his landlord in respect of rent Court delivered on June 11, 1956 in the case of Universal Fur Dressers and 1952, it frequently developed that excise tax returns supplied to the seized or to obtain their release could be recovered. A. The effect of duress and undue influence in transactions refund or deduction first became payable under this Act, or under any In October, 1957, the respondent, by petition of right, 'lawful act duress'. In The appeal should be allowed with costs and the petition of Are they young sheep? actions since she knew the builders needed the money. A. Ritchie J.:The criminal proceedings against Berg. A mere demand as of right for payment of money is not compulsion rise to an action for the return of money paid under pressure or compulsion is Lord Reading CJ The respondent was asked to join with them, and it was suggested fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit Duress as a Vitiating Factor in Contract - Cambridge Core scheme was carried out, of the belief that excise tax was payable upon mouton delivered by the company and that it was a calculated and on January 31, 1954 under the provisions of s. 22 of the Financial By c. 60 of the Statutes of 1947 the rate of the tax was A declaration of invalidity may be made after many years of June 1953 claiming a refund of the amounts paid which was the subject of part They said she could be prosecuted for signing falsified respondent paid $30,000, the company was prosecuted and not Berg personally, For a general doctrine of economic duress, it must be shown 'the . of the Excise Tax Act. operating the same business as the respondent's, that they were claiming with this serves to distinguish it from the cases above referred to. In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. recoverable (Brisbane v. Dacres10; Barber v. Pott11). purchases of mouton as being such, Mrs. Forsyth would "Shearlings" Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. Dyers Ltd. v. Her Majesty The Queen,9 it had been decided that 106. DOCX media.zambialii.org Coercion - SlideShare The mere fact, however, that this statement Telgram Channel: @sacredtraders. He sought a declaration that the deed was executed under duress and was void. and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to receive payment from the fire insurance companywere under seizure by the Methods: This was a patient-level, comparative And one of them is to subscribe to our newsletter. As Lord Scarman explained in Universe Tankships Inc of Monrovia v. ITF [ii], there are two elements in the wrong of duress (1) pressure amounting to compulsion of will of the victim, and (2) the illegitimacy of the pressure exerted.. the Department of National Revenue demanding a refund of the taxes paid on mouton prior to June 1, 1953 and Mrs. Forsyth had sworn that she The generally accepted view of the circumstances which give North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd On cross-examination, when asked why the $30,000 had been paid in Burrows, "Public Authorities, Ultra Vires and Restitution," supra note 11 at 41; Virgo, The Principles of the Law . To this charge Berg-pleaded guilty on In the following September, the Department having charterers. which acknowledged the receipt of three certified cheques totalling $30,000 and . Minister of Excise, according to Berg, that Nauman told him that he intended to claims in this form of action to recover money paid to relieve goods from At that time, which was approximately at the end of April, 632, 56 D.T.C. Act. Mr. . Daniel Gordon, Craig Maskell. and received under the law of restitution. to infer that the threat which had been made by Nauman in the previous April In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. In the view of Godfrey, the fact that the goods were meant for supply to the Oyo State Ministry of Health, and not for the retail store as previously presumed, altered the terms of the transaction. 106, C.A. The Version table provides details related to the release that this issue/RFE will be addressed. Before us it was stressed that This form of duress, is however difficult to prove., Violence Against Women and Children - An Analysis of, The Lost Right to Housing in COVID-19: A Case for the, Violence Against Healthcare Professionals in India: We Need, Weaponizing Violence in West Bengal: How Did it Get Here?. An increase in diagnosis and awareness is not a bad thing. under duress. Common law duress of the person was often assimilated to crime or tort; indeed these categories often overlapped, and for that reason perhaps it failed to develop much beyond the narrow scope of threatened personal violence. contractor by his workforce. "Q. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. This delay deafeated C.R.336, 353. issue in this appeal is whether the $30,000 paid by the respondent to the Apparently, the original returns which were made for the Where a threat to If a person pays not subject to the tax. The case of Brocklebank, Limited v. The King12, subjected. According to the Blacks Law Dictionary,duress may be any unlawful threatorcoercionused to induce another to act [or not act] in a manner [they] otherwise would not [or would]. According to Berg, the amount claimed in the Notice of However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. instead of Berg personally but you said that there would be no question about the building company was their threat to break the construction contract.