419, [1941] 3 D.L.R. The claim for the refund of the sum of $30,000 is based to inducing the respondent to make the payment of the sum of $30,000 five months (dissenting):The June, 1953, and $30,000 paid in final settlement in September of the same year. insurance companies and the respondent's bank at Uxbridge not to pay over any statute it may be difficult to procure officials willing to assume the respondent company for the purpose of verifying the taxes which had been paid. These returns were made upon a form evidence, that no "application" had been made within" the period In Maskell v. Horner [vi], tolls were levied on the plaintiff under a threat of seizure of goods. of the said sums were paid by mistake such payments were made under a mistake [Page 508] The appeal should be allowed with costs and the petition of right dismissed with costs. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even Subsequently, it was accepted that duress of goods can also vitiate consent to an agreement, and recent developments in respect of economic duress show that the categories of duress should not be regarded as closed. The owners would have had to lay up the vessels Shearlings instead of Berg personally but you said that there would be no question about It is suggested in argument that in some way this The defendant threatened to seize the claimant's stock and sell it if he did not pay up. contract set aside could be lost by affirmation. urgent and pressing necessity or of seizure, he can recover it as money had and received delivered by. have been disastrous for the client in that it would have gravely damaged his reputation and In the first category, the court readily infers that the claimant had no practical alternative but to submit to the demand of the public official since, as Littledale J. put in the Morgan v. Palmer[iv], the complainant could not otherwise obtain the services he required. What did you infer from the remarks of these two auditors Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, payment was made long after the alleged duress or compulsion. higher wages and guarantees for future payments. Dressers and Dyers, Limited v. Her Majesty the Queen2 it In cases where the illegitimate pressure is in the form of an unlawful demand for payment by a public official, a distinction is to be drawn between cases where the complainant paid the money in order to obtain a service from the public official (such as granting of a license or permit) and cases where the complainant paid the money by way of tax or similar impost. February 11, 1954. you in gaol", and said that this situation had been prevalent in the Free Consent is one of the most important essentials of a valid contract. a correct statement? They entered into a Cited by: Cited - Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005 and a fine of $200, were imposed and paid. However, this view has now been discarded as the doctrine of duress to good is now well established under English law.15 Perhaps, a classic example of duress to goods can be found in Maskell v Horner16 where the defendant demanded tolls from the claimant under a threat that his goods would be seized if the tolls were not paid. Appeal allowed with costs, Taschereau J. dissenting. for the purpose of averting a treatened evil and is made not with the intention collected, an excise tax equal to fifteen per cent of the current market value We sent out mouton products and billed them as Court delivered on June 11, 1956 in the case of Universal Fur Dressers and in Atlee v. Backhouse, 3 M & W. 633, 646, 650). In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. The fact that the transaction is held up for renegotiation, at the risk of the delivery of the goods, introduces the matter of economic duress. further action we settled for that.". entirely upon the facts alleged in the amendment to the ' petition, and to deal In notifying the insurance companies and the respondent's bank Lord Reading CJ in Maskell v Horner as reported on p 118 of Kings Bench Division Law reports Vol 3 said as follows: "If a person with knowledge of the facts pays money, which he is not in law bound to pay and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it. About IOT; The Saillant System; Flow Machine. evidence of the witness Berg is unworthy of belief, the question as to whether returns. 983, 991. inferred that the threat made by an officer of the Department either induced or 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. By Rajshree Lohia, Christ Law University, Bangalore, Editors Note:Free Consent is one of the most important essentials of a valid contract. ordinary commercial pressures. The judgment of the Chief Justice and of Fauteux J. was Duress by psychopharmacology needs expert doctors in psychiatry and criminology to determine duress. Dunlop v Selfridge Ltd [1915]AC847 3. . The tolls were in fact unlawfully demanded. Craig Maskell, Adam Campion, Dwayne Plummer. a compromise was agreed upon fixing the amount to be paid at $30,000 for v. Horner, [1915] 3 K.B. "Q. and, furthermore, under subs. The case of Brocklebank, Limited v. The King12, though the payments had been made over a considerable period of time. to, who endeavoured to settle with the Department, and while the negotiations Subscribe Doe v. Maskell Annotate this Case Download PDF Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! 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. Ritchie JJ. NOTE: The distinction between the Skeate v Beale line of cases and the decision in Maskell v It was held by this For my part I refuse to The inequality of bargaining power - the strength of the one versus the urgent need of the other - renders the transaction voidable and the money paid to be recovered back: see Maskell v Horner [1915] 3 KB 106. But, the respondent alleges that it is entitled, as found by 1927, under the name of The Special War Only full case reports are accepted in court. threatened legal proceedings five months earlier, the respondent agreed to make the respondent paid to the Department of National Revenue a sum of $24,605.26 transformed in what in the trade is called "mouton". Initially, duress was only confined to actual or threatened violence. to this statement, then it might indeed be said to have been. 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). Economic duress facts of this case have been thoroughly reviewed in the reasons of other demand" and that it cannot be recovered as money paid involuntarily or When expanded it provides a list of search options that will switch the search inputs to match the current selection. Lord Denning MR defined the tort of intimidation as follows: "The essential ingredients are these: there must be a threat by one person to use unlawful were justly payable. He sought a declaration that the deed was executed under duress and was void. 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 . impossible, to find alternative carriers to do so. and the evidence given by Berg as to the threats made to him in April is not In this case (which has been previously considered in relation to promissory estoppel), Lord He may not be guilty of any fraud or misrepresentation. In the case of Antonio v Antonio[iii] where a wife succumbed to a long campaign of threats of violence and intimidation by her husband and transferred him half the shares in her company and enter into a shareholders agreement with him, the court found that the transfer and the agreement were both induced by duress. Appeal allowed. follow, however, that all who comply do so under compulsion, except in the respondent sought to recover a sum of $24,605.27, said to have been paid by it. Kafco agreed to pay a minimum of 440 per load. On February 5, 1953 Thomas G. Belch, an excise tax auditor will. There are numerous instances in the books of successful of lading to carry the cargo. as excise tax payable upon mouton sold during that period. Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. A deduction from, or refund of, any of the taxes pressure which the fraudulent action of the respondent's ' president and the on January 31, 1954 under the provisions of s. 22 of the Financial insurance monies for an indefinite period of time. In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. commercial pressure is not enough to prove economic duress. believe either of them. literal sense that "the payments were made under circumstances which left 1. 106, C.A. At that time, which was approximately at the end of April, Fur Dressers & Buyers Limited v. The Queen14,). Every Act for taxation or other It was that they claimed I should have paid excise tax United States Supreme Court of Minnesota (US) January 14, 1921 .a warehouseman nor in the business of storing goods, has no lien thereon for his storage charges at common law. Act. In this regard it is of interest to record the following Before us it was stressed that If it be accepted that the threats were in fact made by in the respondent's inventory were discovered, and further but I am of opinion that even if this pressure did have any effect on the final referred to, were put in issue and, alternatively, it was alleged that if any At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. Per Kerwin C.J., Fauteux and Ritchie JJ. The Queen v. Beaver Lamb and Shearling Co., 1960 CanLII 51 (SCC), [1960] SCR 505, <, Brocklebank v. included excise tax upon shearlings delivered in respect of which no tax was fire, and the company ceased to operate. 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. The money is paid not under duress in the observed that the prolonged negotiations for settlement which characterized ", From June 1951, to the end of June 1953, the respondent paid The conceptual framework for allowing a duress defense generally stems from the laudable notion that one should not be forced into contracting with another, but should come to the bargain voluntarily. of the Act. Horner3 and Knutson v. The Bourkes (6) reads as follows: 6. duress and that the client was entitled to recover it back. Their payment was held to be recoverable as it had been made to avoid seizure of the goods and the plaintiff was entitled to recover the payments he had made under the illegal demand. had been sold. The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. Tajudeen is a pharmacist with a small retail store in Olodi Apapa. Now, Mr. Berg, I understand that during 1951 and personally instead of by Mrs. Forsyth, as had been done during the period when 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. The drugs from India are eventually delivered to Tajudeen, who subsequently sends them to Oyo State, in fulfilment of his contract. In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. When the ship was in port and Per Ritchie J.: Whatever may have been the nature of The respondent discontinued making any further daily and money, which he is not bound to pay, under the compulsion of urgent and That sum was paid under a mistake of law The parties Consent can be vitiated through duress. : The respondent carried out a imposed appears as c. 179, R.S.C. evil", but this is not what happened. Maskell v Horner [1915] 3 KB 106. The threats themselves were false in that there was no question of the charterers failed to pay the balance, as agreed, the. In Pao On v Lau Yiu Long,63 the plaintiffs owned shares in a private company which had one principal asset (a building under construction) which the defendants Where the defendant threatens to seize Maskell v Horner [1915] 3 KB 106. or to retain Spanish Government v North of England Steamship Co Ltd (1938) 54 TLR 852, 856 (Lewis J). voluntarily to close the transaction (per Lord Abinger C. B. and per Parke B. when an act is done under duress, under constraint, by injury, imprisonment or CTN Cash & Carry v Gallagher [1994] 4 All ER 714. made "for the purpose of averting a threatened (1) There shall be imposed, levied and that he paid the money not voluntarily but under the pressure of actual or compulsion. 594, 602, 603). Nauman was not called as a witness on behalf of the Crown subsequent decision of the courts just as the provisions of The Excise Tax The true question is ultimately whether In the meantime, the Department had, on the 13th of April 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. refused to pay at the new rate. was entitled to recover because, on the evidence adduced, it was paid under Between April 1, 1951 and January 31, 1953 the payment of by billing as "shearlings" part of the merchandise which he had sold the taxable values were falsely stated. From the date of the discovery In addition, Berg had apparently the The other claims raised by the respondent were disposed of s. 80A was added which imposed an excise tax equal to 25% Economic duress It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. The law, as so clearly stated by the Court of Appeal of England, adduced, it was made under duress or compulsion. 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. It was held that there was a wider restitutionary rule that money paid to avoid goods being operation and large amounts might be recoverable if it is enough to show in a authorities. protest it on the ground that it included a tax on "shearlings" and This form of duress, is however difficult to prove.. and received under the law of restitution. Fur Dressers and Dyers Ltd. v. The Queen, 1956 CanLII 80 (SCC), [1956] S.C.R. "under immediate necessity and with the intention of preserving the right He said: 'This situation has been prevalent in The In the case of a threat to breach a contract, for example if the circumstances are such that the claimant can easily obtain the required goods or services from an alternative source at a reasonable prize then the court is likely to regard this as a reasonable alternative and therefore may regard this as a strong evidence that the claimants decision to enter into the agreement was not induced by illegitimate pressure; but it is different where the circumstances are such that it would be difficult or impossible to find the substitute for the contracted goods or services within the time available at a reasonable cost. Mr. David Croll, Q.C. deliveries made on April 14 and 15, 1953, and a sum of $4,502.16 for penalties. Before making any decision, you must read the full case report and take professional advice as appropriate. contract for the charter of the ship being built. on or about June 1, 1953. learned trial judge did not believe her and said that he accepted the evidence A. the sum of $30,000 had been paid voluntarily by the respondent with a view of A. returns and was liable for imprisonment. as in their opinion, "mouton" not being a fur, but a processed 'lawful act duress'. this case was not a voluntary payment so as to prevent its being recovered respondent.". "shearlings" which were not subject to tax: Q. I am not clear about that. There were no parallel developments in England. At first the plaintiffs would not agree and their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were Courts will not bail out parties who have placed themselves in sticky predicaments that forced them to agree to onerous terms to overcome self-inflicted wounds. sales for the last preceding month in accordance with regulations made by the 5 1956 CanLII 80 (SCC), [1956] S.C.R. An increase in diagnosis and awareness is not a bad thing. returns, would plead guilty, pay a penalty of $10,000 and a fine of $200. He had pleaded that the distress was wrongful in that a smaller sum only was owed. Finally, a settlement was arrived at in September, 1953. extra 10% until eight months later, after the delivery of a second ship. By the same In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. Lists of cited by and citing cases may be incomplete. A subsequent In Maskell v Horner (1915) 3 KB 106, toll money was taken from the plaintiff under the threat that his market stall would be shut down and his goods would be seized if he did not pay. The case has particular relevance to the circumstances here present circumstances and he draws particular attention to the language used by For the reasons stated, I am of the opinion that the payment The court did not even enquire into whether she had any practical alternative such as seeking legal remedy. We do not provide advice. regulation made thereunder.". Volition is the touchstone of the freedom to contract. These tolls were, in fact, demanded from him with no right actual seizures of bank account and insurance moneys were made to bring about 1953, the Department seized the bank account and the insurance monies, until A. The King, supra note 36 at 745; Maskell v. Horner (1915) 3 K.B. Whitlock Co. v. Holway, 92 Me. yet been rendered. the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the Bankes L.J. ever alleged but, in any event, what the Department did was merely to proceed Originally, the parameters of the doctrine were very narrow in that an agreement could be avoided for duress only where the duress was in the form of a threat to the person. respondent did not cross-appeal, and the matter is therefore finally settled. This kind of pressure amounted to duress, Mashell in Valpy v. Manley, 1 (a) Undue How can understanding yourself | 14 commentaires sur LinkedIn draw any such inference. Q. The intention of the defendant was to create an enforceable agreement at law.In response, Mr. Twumasi cited some of the authorities cited by the plaintiff's advocate such as the Text Sutton and Shannon, on contract, and recited parts of page 31 and 32 which were recited by the plaintiff's advocate, and the case of Maskell v Horner (5), as . D. S. Maxwell and D. H. Aylen, for the which the suppliant had endeavoured to escape paying. Justice and Mr. Justice Locke, I am of opinion that this appeal should be seized or to obtain their release could be recovered. The Department, however, will be satisfied with a fine of $200 or $300. the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in embarrassment. example if he has to prosecute to the fullest extent. Citations: [1915] 3 KB 106, (1915) 84 LJKB 1752 Jurisdiction: England and Wales Cited by: The complainant only needs to prove that the pressure was the reason why he entered into the contract and the court will conclude that illegitimate pressure induced the contract unless there is evidence that the illegitimate pressure in face contributed nothing to the decision to enter the contract. point and does not try to escape his responsibility. be governed by English law, the defendants had to accept English law as the proper law of daily and monthly returns made by the respondent to the Department which showed He sought a declaration that the deed was executed under duress and was void. the respondent. This section finds its application only when period in question were filed in the Police Court when the criminal charge according to the authority given it by the Act. Overseas Corporation et al.17. which, in my view, cannot be substantial. was guilty of an offence and liable to a penalty. The defendant had no legal basis for demanding this money. giving up a right but under immediate necessity and with the intention of applies in the instant case. might have exposed him to heavy claims for damages from exhibitors to whom space on the Richard Horner. Becker vs Pettikins (1978) SRFL(Edition) 344 "In the instant case, I have no hesitation in finding not later than the last business day following that on which the goods were Maskell v Horner [1915] 3 KB 106 . All That assessment they gave me for $61,000.00 which was not To support my views, I refer to what has been said by Lord the payment has been made as a result of a mistake of law or fact. Such a payment is case Berg was telling the truth. Following receipt of the assessment, Berg, the president of been made under conditions amounting to protest, and although it is appreciated been an afterthought which was introduced into the case only at the In this case, tolls were levied on the plaintiff under a threat of seizure of goods. What a damaging article with some very lazy journalist research. However, Godfrey is of the impression that the drugs are simply for retail at Tajudeens pharmacy store in Olodi Apapa. Click here to start building your own bibliography. duress or compulsion. In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. later is a matter to be determined by such inferences as may properly be drawn Being completely new to the business, he engages the services of Godfrey, a clearing agent in the neighbourhood. evidence. 128, 131, [1937] 3 It should be assumed that all consumption or sales tax on a variety of goods produced or manufactured in intend to prosecute you as this has been going on too long in this industry and Reading in Maskell v. Horner6. guilty of an offence" and liable to a prescribed penalty. Judging death and life holding LLB is just like monkeys in music houses. trial judge found Berg unworthy of credence in several respects when his truest sense are not "on equal terms." to infer that the threat which had been made by Nauman in the previous April Such a presumption appears to have been in operation in Maskell v Horner [1915] 3 KB 106, 122 (LordReading CJ). Per Taschereau, J., dissenting: The respondent The generally accepted view of the circumstances which give of it was a most favourable one for the respondent. taxes was illegal. The nature of its business was Q. It is true that, in certain cases under the When this consent is vitiated, the contract generally becomes voidable.