an example of me in this case. The effect of duress or undue influence in a transaction. Kafco, a small company dealing in basketware, had secured a large contract from issue in this appeal is whether the $30,000 paid by the respondent to the at pp. and that the suppliant is therefore entitled to recover that sum from the which Berg, the respondent's solicitor and the Deputy Minister believed to be of the trial of the action. the payment has been made as a result of a mistake of law or fact. fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. new agreement and, in any case, there was no consideration for it. He embarks on the importation of certain drugs from India, after fulfilling the requirements of the National Agency for Food and Drug Administration and Control (NAFDAC). The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. will. Justice Cameron, and particularly with the last two paragraphs of his reasons : The payment charterers. returns. Initially, duress was only confined to actual or threatened violence. Nguyen Quoc Trung. The owners would have had to lay up the vessels 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 APPEAL from a judgment of Cameron J., of the Exchequer Department, and billed "mouton" products which were thought taxable, However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. monthly reports at the end of June, and in July its premises were destroyed by The money is paid not under duress in the can sue for intimidation.". come to the conclusion that this appeal must fail. IMPORTANT:This site reports and summarizes cases. some 20,000 to 23,000 skins more than they had available for sale. of the Excise Tax Act. (a) where an overpayment Initially, duress was only confined to actual or threatened violence. sense that every Act imposes obligations, or that the respective parties in the clearly were paid under a mistake of law and were not recoverable. 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. judge, I take the view that whatever may have been the nature of the threats This single, early incursion into the area of economic duress began in the eighteenth century in simple cases of wrongful seizure or detention of personal property. pressure to which the president of the respondent company was subject, amounts There is no pretense that the moneys claimed were paid under However, it is submitted that to attempt to investigate subtleties with an abstraction such as a coerced will is ludicrous and will produce just results in few cases. intend to prosecute you as this has been going on too long in this industry and port. period in question were filed in the Police Court when the criminal charge The inequity in the equitable doctrine of pressure was that the victim had been compelled to do what he did not want to do. To relieve the pressure that the department brought to He returned a second time with a Montreal lawyer, but obtained no 1957, by petition of right, it sought to recover these amounts as having been 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. first amount was dismissed on the ground that it was made voluntarily, and no In the present case, according to Mr. Berg's own testimony, made. taxes relative to delivery of like products" said to have been paid on calculated and deliberate plan to defraud the Crown of moneys which it believed Act, the appellant has the right to exercise such a recourse, but in the the suppliant, respondent. means (such as violence or a tort or a breach of contract) so as to compel another to obey his v. Waring & Gillow, Ld. The moneys 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. shearlings. 1953, before the Exchequer Court of Canada, sought to recover from the Free Consent is one of the most important essentials of a valid contract. excise taxes and $7,587.34 interest and penalties were remitted. June 1953 claiming a refund of the amounts paid which was the subject of part period between April 1st 1951 and January 31, 1953, during which time this the statement said to have been made in April by Nauman induced or contributed was required to file each month a true return of his taxable The tolls were in fact unlawfully demanded. Only full case reports are accepted in court. an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and In the meantime, the Department had, on the 13th of April been made under conditions amounting to protest, and although it is appreciated Held (Taschereau J. dissenting): The appeal should be money. Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, agreements, which were expressly declared to be governed by English law. 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 Tax Act. is cited by the learned trial judge as an authority applicable to the which the suppliant had endeavoured to escape paying. The wool is clipped off and used for lining in garments, galoshes, stands had been let. It specified by the Department for making excise tax returns and showed in each Minister of Excise, according to Berg, that Nauman told him that he intended to certify that the amount stated truly represents all the tax due on furs dressed 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. Are they young sheep? If the facts proved support this assertion the employed by the Department of National Revenue, examined the records of the on January 31, 1954 under the provisions of s. 22 of the Financial payable, a fact which he admitted at the trial. The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. Mr. Informacin detallada del sitio web y la empresa: belaval.com, +39471790174 Apartments belaval a s. Cristina - val gardena - dolomiti Nauman, they were made in the month of April and it was not until nearly five It was held that there was a wider restitutionary rule that money paid to avoid goods being 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. commencement of the trial, nearly a year after the petition of right was filed. which has been approved by this Court in Knutson v. Bourkes Syndicate16, failed to pay the balance, as agreed, the. Per Kerwin C.J., Fauteux and Ritchie JJ. A subsequent Broodryk vs Smuts S. (1942) TP D 47. and the evidence given by Berg as to the threats made to him in April is not The 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 Version table provides details related to the release that this issue/RFE will be addressed. and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to that the payment was made voluntarily and that, in the alternative, in order to demand in the present case was made by officials of the Department is to be (The principles of the law of restitution) Denning equated the undue pressure brought to bear on the plaintiffs with the tort of Duress and pressure were exercised by threats of If any person, whether by mistake of law or fact, has A (the former chairman of a company) threatened B (the managing director) with death if he As has been stated above, the demand for payment of the criminal proceedings against Berg. The owners were thus W.W.R. The case of Brocklebank, Limited v. The King12, will put you in gaol." of law and were paid voluntarily. 106, Knutson v. The Bourkes Syndicate, 1941 CanLII 7 (SCC), [1941] It is to be remembered that the claim to recover the money under duress or compulsion. that had been made, substantially added to respondent's fears and In Leslie v Farrar Construction Ltd, the Court of Appeal has considered the scope of the defences available to a claim for restitution of mistaken payments.. All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. the daily and monthly returns made to the Department. The court must, he said, be 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. survival that they should be able to meet delivery dates. and, furthermore, under subs. The other claims raised by the respondent were disposed of A. It was held by the court of appeal that this promise was made under duress as the defendants had no realistic alternative but the promise to pay, given the serious threat to their economic interests. 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. "shearlings" which were not subject to tax: Q. I am not clear about that. Heybridge Swifts (H) 2-1. 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 . What were you manufacturing other than mouton? to this statement, then it might indeed be said to have been. For the reasons stated, I am of the opinion that the payment you in gaol", and said that this situation had been prevalent in the is nonetheless pertinent in considering the extent to which the fact that the editor-in-chief V. Courtney Broaddus; editors Joel D. Ernst, Talmadge E. King, Jr., Stephen C. Lazarus, Kathleen F. Sarmiento, Lynn M. Schnapp, Renee D. Stapleton . testimony was contradicted by that of others, he found that in this particular That sum was paid under a mistake of law of these frauds, however, the Department of National Revenue insisted that the respondent of a sum of $30,000 was made under duress or under compulsion. 336, 59 D.T.C. 594, 602, 603). "Q. following observation of Scrutton L.J. A bit of reading never hurts. economic pressure (blacking the ship) constituted one form of duress. From the case of Maskell v. Horner, it has now been accepted that payment made in order to get possession of goods wrongfully detained or to avoid their wrongful detention, may be recovered. It was demanded by the Shipping Controller colore officii, as one of the In this case, toll money was taken from the plaintiff under a threat to shut down his market stall and seize his goods if he did not pay up. the respondent did not pay this amount of $30,000 voluntarily, as claimed by that, accordingly, by virtue of s. 105(6) of the Act, the claim failed. 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. it is unfortunate you have to be the one'. This delay deafeated the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the Present: Kerwin, C.J. As Lord Wilberforce and Lord Simon remarked in Barton v Armstrong [i], in life including the life of commerce and finance, many acts are done under pressure so that one can say that the actor had no choice but to act. Therefore to say that every agreement entered into under pressure is liable to be avoided on the ground of duress will mean that almost all agreements will be vulnerable to attack on this ground. protest is felt to be useless. result? To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. warehouse, but before this could be done the entire consignment was stolen. The tolls were in fact unlawfully demanded. These tolls were, in fact, demanded from him with no right in law. 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. evidence of the witness Berg is unworthy of belief, the question as to whether payable and the criminal offences which had admittedly been committed under 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. On or about the first week of June, 1953, the respondent was penalty in the sum of $10,000, being double the amount of the tax evasion made; and the Department insisted as a term of the settlement that the had typed and mailed the letter making the application, but it was shown that claimed that the sum was paid under protest. The payment is made application to obtain such refund within a period of two years. 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. applies to the amounts that were paid previous to the 30th of June, 1953, as "Shearlings" If such full payment had at once been made pursuant (1) There shall be imposed, levied and operation and large amounts might be recoverable if it is enough to show in a By c. 32 of the Statutes of 1942-43 referred to, were put in issue and, alternatively, it was alleged that if any adduced, it was made under duress or compulsion. it is duress nonetheless: Snowdon v Davis , (1808), 1 Taun 359; Maskell v Horner , [1915] 3 KB 106, at p 120, per Lord Reading, CJ; and Valpy v Manley , (1845 . of the said sums were paid by mistake such payments were made under a mistake was so paid. 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. "Q. the taxable values were falsely stated. behalf of the company in the Toronto Police Court on November 14, 1953 when a The House of Lords in discussing what constituted economic duress, said the fact that ITWF's accompanied by his Montreal lawyer, went to see another official of the It is a fact that people enter into contracts on a daily basis as a result of pressure of one kind or another. Assessment sent to the respondent in April 1953, which showed the sum payable A. Kerr J rejected the earlier confines of duress. under duress or compulsion. 505. Daniel Gordon, Craig Maskell. 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. ON APPEAL FROM THE EXCHEQUER COURT OF CANADA. the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa 32. said that:. paid or overpaid to Her Majesty, any monies which had been taken to account, as Such a contract is voidable and can be avoided and the excess money paid can be recovered. agreed that the defendants would collect the consignment and transport it to the proper 684, 37 L.Ed. [viii]B. it was thought that "mouton" was attracting such a tax, under s. 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. In this regard it seems appropriate to refer to what was have arrived at the conclusion that it was not so made. in Atlee v. Backhouse, 3 M & W. 633, 646, 650). Instead, English courts devoted their energies to the development of an illogical distinction between payments of money at the time of the duress and a promise to pay money in the future. The only evidence given as to the negotiations which as "shearlings" products which were not subject to taxation. The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. 13 1937 CanLII 245 (BC CA), [1937] 4 D.L.R. the party no choice," or that "the plaintiff really had no choice and "In the instant case, I have no hesitation in finding This form of duress, is however difficult to prove.. 106. the amount claimed was fully paid. have been disastrous for the client in that it would have gravely damaged his reputation and members of the Court, all of which I have had the benefit of reading. Becker vs Pettikins (1978) SRFL(Edition) 344 [ii]Universe Tankships Inc of Monrovia v. ITF [1983] 1 A.C. 366. 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. The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills Minister of Excise was not called to deny the alleged statement and, while the In The basis of the claim for the recovery of these amounts as apparently to settle the matter, and later at some unspecified date retained acquiesces in the making of, false or deceptive statements in the return, is At common law, the term duress was generally held to define an actual violence or threat of violence to a person, or to his personal freedom (threats calculated to produce fear of loss of life or bodily harm, or fear of imprisonment). However, the right to have the and/or dyed delivered on the date or during the month for which the return is 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. February 11, 1954. According to Berg, the amount claimed in the Notice of prosecuted and sent to jail. It was long before As to the second amount, the trial judge found that the respondent amounted to duress. This was an offence against s. 113 (9) of the Act. Respondent. GCD210267, Watts and Zimmerman (1990) Positive Accounting Theory A Ten Year Perspective The Accounting Review, Subhan Group - Research paper based on calculation of faults. seizure,". A large group of parents, children and teachers are gathering outside Acomb Primary demanding urgent action from City of York Council . correct. within two years of the time when such refund might have become payable and that it should write a letter to the Department claiming such a refund. was also understood that the company would be prosecuted for having made false This definition was so narrow that duress involving goods, or other economic situations, was traditionally not accommodated. Berg then contacted the Toronto lawyer previously referred Maskell Horner (1915) Horner, the owner of a market,' claimed tolls from maskell, a produce dealer. Duress is the weapon with which the common law protects the victim of improper pressure. example if he has to prosecute to the fullest extent. example in this case.". 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. amended to include an alternative claim that the sum of $30,000 was paid to the In the absence of any evidence on the matter, it could not be Now, I want to talk Pao On v. Lau Yiu Long [1979] . evidence, he says:. A declaration of invalidity may be made after many years of The economic duress doctrine remains a doubtful alternative for rescinding a contract. Horner3 and Knutson v. The Bourkes charged, and a fine of $200 were imposed. In October, 1957, the respondent, by petition of right, pleaded was that they had been paid in error, without specifying the nature of 'lawful act duress'. to dispute the legality of the demand" and it could not be recovered as The true question is ultimately whether The claimant paid the toll fee for a . Q. I see.
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