Contracts Notes
DURESS
1. Generally
If one party pressures the contractual consent of another by duress the contract is voidable by that other party (See Also s 52A TPA and s 39 FTA).
The common law has long recognised that duress, in the form of coercion of the plaintiff’s will through illegitimate pressure or threats to the plaintiff’s interests, render a contract voidable (Barton v Armstrong). Traditionally, the common law concept of duress was limited to actual or threatened violence to the person of the contracting party or their family or near relatives constitutes duress (Seear v Cohen; Barton v Armstrong).
It appears that today, the emphasis appears to have shifted away from the notion of coercion of the will of the plaintiff to the lack of legitimacy in the pressure or compulsion (Crescendo Management Pty Ltd v Westpac Bank Corporation).
2. Types of Duress
There are three types of duress – threats to the person, threats to personal property and economic duress.
a) Threats to person: The traditional common law concept of duress was limited to actual or threatened violence to the person of the plaintiff of their family (Farmers’ Cooperative Executors & Trustees Ltd v Perks).
Where a threat is made against a party’s life and was one of the reasons for that party entering into a contract, relief should be granted for duress. It is immaterial that there may have been other reasons (including good business sense) if the threat contributed to that decision (Barton v Armstrong).
This notion extends to actual or threatened imprisonment or confinement (Barton v Armstrong). In contrast, a contract resulting from a threat of criminal prosecution for which there is sufficient ground will not amount to duress, provided that the person being threatened is provided valuable consideration for entering the contract and there is no agreement to prevent the plaintiff from informing the police (ie. to stifle prosecution) (Scolio Pty Ltd v Cote). For
1. Generally
If one party pressures the contractual consent of another by duress the contract is voidable by that other party (See Also s 52A TPA and s 39 FTA).
The common law has long recognised that duress, in the form of coercion of the plaintiff’s will through illegitimate pressure or threats to the plaintiff’s interests, render a contract voidable (Barton v Armstrong). Traditionally, the common law concept of duress was limited to actual or threatened violence to the person of the contracting party or their family or near relatives constitutes duress (Seear v Cohen; Barton v Armstrong).
It appears that today, the emphasis appears to have shifted away from the notion of coercion of the will of the plaintiff to the lack of legitimacy in the pressure or compulsion (Crescendo Management Pty Ltd v Westpac Bank Corporation).
2. Types of Duress
There are three types of duress – threats to the person, threats to personal property and economic duress.
a) Threats to person: The traditional common law concept of duress was limited to actual or threatened violence to the person of the plaintiff of their family (Farmers’ Cooperative Executors & Trustees Ltd v Perks).
Where a threat is made against a party’s life and was one of the reasons for that party entering into a contract, relief should be granted for duress. It is immaterial that there may have been other reasons (including good business sense) if the threat contributed to that decision (Barton v Armstrong).
This notion extends to actual or threatened imprisonment or confinement (Barton v Armstrong). In contrast, a contract resulting from a threat of criminal prosecution for which there is sufficient ground will not amount to duress, provided that the person being threatened is provided valuable consideration for entering the contract and there is no agreement to prevent the plaintiff from informing the police (ie. to stifle prosecution) (Scolio Pty Ltd v Cote). For