The most obvious and clear cut type of illegitimate pressure is that applied by means of unlawful conduct. Illegitimate pressure, inducement and the existence of reasonable alternatives No reasonable alternative – that is, the consequence of resisting the illegitimate pressure.Benefit to party who applied the illegitimate pressure and.Inducement / coercion (which is only relevant if there has been illegitimate pressure).The key features of economic duress include: In more recent times the common law doctrine of duress is not so restrictive and the doctrine has been taken beyond threats of physical harm and includes not only unlawful threats, but lawful threats or conduct which are considered to be illegitimate. Threats to a person’s goods were not sufficient to render the agreement voidable but were sufficient to amount to duress and could be used to support an application for restitution. Historically, the early common law doctrine required that in order for the relevant agreement to be voidable, there must be an unlawful threat or conduct in relation to a person’s body. What is required to prove a claim of economic duress? For those interested in further reading we recommend the discussion of undue influence and unconscionable conduct in the joint judgment of Chief Justice Keifel, together with Justices Bell, Gageler, Keane and Edelman in Thorne v Kennedy HCA 49. Undue influence is more keenly focussed on the quality of the consent of the “weaker” party (with equity helpfully presuming influence in certain relationships). In simple terms, unconscionable conduct is focused on the quality of the conduct of the offending party but duress is assessed by reference to the effect of the pressure applied by the offending party. Nonetheless, there are important differences. In simple terms, duress at common law requires that the offending party to an agreement uses illegitimate pressure to force the other party to enter into an agreement (or modify an existing agreement) as a result of which the offending party obtains a benefit.Ī successful claim with respect to economic duress can render the relevant agreement voidable.Įconomic duress is often asserted together with undue influence and unconscionable conduct as there can be some overlap, depending on the conduct alleged. What is (and what is not) economic duress? The relevant facilities were not subject to the Consumer Credit protections and the Customer was alleging duress at common law. We were recently faced with a case in which the Customer of our lender client asserted that releases given by him and his related corporate entities to the lender were voidable on the basis that they were obtained as a result of economic duress. This article considers what economic duress is, and what it is not. However economic duress is not simply the application of economic pressure applied by one contracting party over another. The potential ramifications are significant because a successful claim of economic duress can render the relevant agreement voidable. Customers in disputes with their lender often raise economic duress in circumstances where a lender attempts to take enforcement action.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |