Lloyd's Maritime and Commercial Law Quarterly
THE TRAVAILS OF DURESS
Crescendo Management v. Westpac Banking
Williams v. Roffey Bros.
The Evia Luck (No. 2)
Restitution on the ground of duress has been prominent in the law reports over the last 15 years.1 Many doubts persist. Uncertainty is created by the habit of drawing an unexamined line between “economic” duress and the rest of the subject. Much worse are the tensions due to the wrong turn taken when Pao On v. Lau Yiu Long
2 illegitimately compelled Barton v. Armstrong
3 to endorse a requirement, at least for some cases, that the pressure must have amounted to “coercion of the defendant’s will”. This plausible-sounding but inscrutable expression serves only to conceal a discretion. The false step must be retraced.4
The New South Wales Court of Appeal has now firmly repudiated it, but the law reporters of that normally well-reported jurisdiction have this time left its light under a bushel. More recently our own Court of Appeal, while taking the bold step of shifting to duress some important work hitherto done by consideration, has overlooked the concomitant necessity of bringing into the open the competing priorities which have been intuitively balanced behind the inscrutable requirement of a will coerced. The “coercion of the will” heresy will not be finally eliminated until that ordering of priorities is made explicit. A third recent case has addressed a new problem. Does a pressure trigger restitution in English law if, though illegitimate in England, it is legitimate within the jurisdiction in which the events happen? The Court of Appeal’s answer is not made easier to follow by reluctance openly to admit that it could not be discussed other than as a problem in the conflict of laws.
1. Recent studies include: M. H. Ogilvie, “Economic Duress, Inequality of Bargaining Power and Threatened Breach of Contract” (1981) 26 McGill L.J. 289; E. Macdonald, “Duress by threatened breach of contract” [1989] J.B.L 460–473; P. A. Chandler, “Economic Duress: Clarity or Confusion” [1989] LMCLQ 267.
2. [1980] A.C. 614, 635–636 (Lord Scarman).
3. [1976] A.C. 104.
4. Cf. P. S. Atiyah, “Duress and the Overborne Will” (1982) 98 L.Q.R. 197; Introduction to the Law of Contract, 4th edn. (Oxford, 1989), 284–292. But Atiyah would probably reject my position: See infra, text to fn. 10.
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