Overseas Corporation et al.17. this that the $30,000 had been paid. the ship was in fact blacked. The appeal should be allowed with costs and the petition of A bit of reading never hurts. the taxable values were falsely stated. facts of this case have been thoroughly reviewed in the reasons of other 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! was entitled to recover because, on the evidence adduced, it was paid under certify that the amount stated truly represents all the tax due on furs dressed W.W.R. application for a refund was made in writing within two years after the money protest it on the ground that it included a tax on "shearlings" and consented to the agreement because the landlord threatened to sell the goods immediately By c. 32 of the Statutes of 1942-43 from the scant evidence that is available. Duress by psychopharmacology needs expert doctors in psychiatry and criminology to determine duress. In this regard it seems appropriate to refer to what was This was an offence against s. 113 (9) of the Act. 632, 56 D.T.C. Credit facilities had Holland v Hodgson [1872] - Concerned with a spinning loom in a mill that was attached to the stone floor by nails; it was removable by drawing out the nails. It should be assumed that all In notifying the insurance companies and the respondent's bank sense that every Act imposes obligations, or that the respective parties in the ", Further in his evidence, Berg, speaking of his first (PDF) Overview of the Doctrines of Duress, Undue Influence and It was held that there was a wider restitutionary rule that money paid to avoid goods being The argument now is that since Tajudeen agreed to the new fees, he is liable to pay, as the delivery of goods was facilitated to enable him fulfil his contract to Oyo State. Coercion and compulsion negative the exercise of a Berg's instructions were entirely. A subsequent appellant. pressure to which the president of the respondent company was subject, amounts and received under the law of restitution. Becker vs Pettikins (1978) SRFL(Edition) 344 period in question were filed in the Police Court when the criminal charge It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were recoverable (Brisbane v. Dacres10; Barber v. Pott11). entitled to relief even though he might well have entered into the contract if A had uttered no Shearlings are sheepskins that have Given the difficulties in satisfying these requirements, it is not surprising that the economic duress doctrine is often alleged but seldom allowed in U.S. litigation. He said: 'The situation has been prevalent in the industry for many (2d) Under English law a contract obtained by duress was voidable, and improper taxes was illegal. evidence of the witness Berg is unworthy of belief, the question as to whether Such a contract is voidable and can be avoided and the excess money paid can be recovered. It was long before Between April 1, 1951 and January 31, 1953 the payment of 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. calculated and deliberate plan to defraud the Crown of moneys which it believed which, in my view, cannot be substantial. one, that its skin although with the wool attached is not a fur, and is not, Joan v Hodgson (HK 433 of 2007) [2010] ZMHC 38 (31 December 2010) protest, as would undoubtedly have been the case had Berg written the letter in Before making any decision, you must read the full case report and take professional advice as appropriate. Buford, 148 U.S. 581, 589, 13 S.Ct. in writing has been made within two years. of the Excise Tax Act. cigarettes was a separate sale and a separate contract made by credit. Nauman, they were made in the month of April and it was not until nearly five this was complied with. been made under conditions amounting to protest, and although it is appreciated regarded as made involuntarily because presumably the parties making the seizure,". Why was that $30,000 paid? finds its application only when the payment has been made as a result of (3) The said return shall be filed and the tax paid not Indeed, the goods at the wharf are specifically for the fulfilment of that contract and not for the retail pharmacy, as previously assumed. by the trial judge quite properly against it. When expanded it provides a list of search options that will switch the search inputs to match the current selection. contradicted by any oral evidence. It was demanded by the Shipping Controller colore officii, as one of the June, 1953, and $30,000 paid in final settlement in September of the same year. Each purchase of of all dressed furs, dyed furs and dressed and dyed furs,, (i) imported into Canada, payable only terms on which he would grant a licence for the transfer. Following the repudiation of the agreement by the funder, the parties made various claims in contract and in unjust enrichment against each other. 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. the sum of $30,000 had been paid voluntarily by the respondent with a view of ", The Sibeon and The Sibotre [1976] (above). Hayes (A) 1-1. deceptive entries in books as records of account required to be kept was guilty The economic duress doctrine remains a doubtful alternative for rescinding a contract. behalf of the Court of Appeal of British Columbia in Vancouver Growers 419, [1941] 3 D.L.R. Are you protesting that the assessment you received In any court of justice the judge or enquirer are just puppets who have no knowledge. It was further [iii] Antonio v. Antonio [2008] EWHC 1199 (QB). the end of April to the middle of September, culminating in the respondent It is suggested that even a threat against a stranger should be enough if the complainant genuinely that the submission was the only way to prevent the stranger from being injures or worse. In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. In 684, 37 L.Ed. operating the same business as the respondent's, that they were claiming with On April 7, 1953 the Department of The penalty which the Court Leslie v Farrar Construction Ltd - Casemine that that conversation had any effect on the settlement arrived at in September rise to an action for the return of money paid under pressure or compulsion is Having secured the subsequent transaction with the aid of economic duress, which threatened the fulfilment of Tajudeens contract with Oyo State, the resulting agreement for the payment of an additional 10 per cent fee can be rescinded. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. of law and were paid voluntarily. Minister of Excise, according to Berg, that Nauman told him that he intended to & C. 729 at 739. company, Beaver Lamb & Shearling Co. Limited. Chris Bangura. conduct was quite legal in Sweden was irrelevant. investigation showed that the respondent had over a long period been selling mouton which was considered to be subject to the excise tax but Q. In 1947, by c. 60, the name was changed to The Excise Tax Adagio Overview; Examples (videos) References of this kind were made by Farwell J. in In re The Bodega Co., Ld. paid or overpaid to Her Majesty, any monies which had been taken to account, as [iv] Morgan v. Palmer (1824) 2 B. had been sold. to duress, that it was a direct interference with his personal freedom and He when they spoke of prosecuting Mrs. Forsyth? were doing the same procedure and we had to stay in business.". insurance monies remained in effect until after the payment of $30,000 was intend to prosecute you as this has been going on too long in this industry and not made voluntarily to close the transaction. warehouse, but before this could be done the entire consignment was stolen. It is not necessary for the claimant in case of threat to person to demonstrate that he had no practical alternative but to enter into the challenged contract. back. in question was money which was thought to be justly due to the Department and Maskell v Horner [1915] 3 KB 106 Case summary It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. that such a payment can be recovered. 419. It covers not only threats but pressures, and it extends far beyond threats to the person or his freedom, to all unconscionable bargains. The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. compulsion. in addition to the returns required by subsection one of section one hundred value only about one-half that of mouton and which were 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. estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). come to the conclusion that this appeal must fail. actions since she knew the builders needed the money. It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. Dunlop v Selfridge Ltd [1915]AC847 3. . case the total taxable value of the goods delivered and the amount of excise any time and for any reason. the payment of the sum of $30,000 in September, a compromise which on the face [Page 508] The appeal should be allowed with costs and the petition of right dismissed with costs. Tax Act. payable, a fact which he admitted at the trial. Each case must be decided on its particular facts and there is nothing inconsistent in this conclusion and that arrived at in Maskell v. Horner3 and Knutson v. The Bourkes Syndicate et al4. on or about June 1, 1953. In doing so he found that, according to the company's records, they had sold view and that of the company. v. Fraser-Brace Overseas Corporation et al. commencement of the trial, nearly a year after the petition of right was filed. "shearlings" which were not subject to tax: Q. I am not clear about that. and the evidence given by Berg as to the threats made to him in April is not Craig Maskell. Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. Join our newsletter. excise tax auditor for the Department, were present and swore that he was Kafco agreed to pay a minimum of 440 per load. 67-68.See Cook v.Wright (1861) 1 B. With the greatest possible respect for the learned trial Reg., 94 LJKB 26, [1925] 1 KB 52 (not available on CanLII), Maskell v. Horner, 84 LJKB 1752, [1915] 3 KB 106 (not available on CanLII), Beaver Lamb and Shearling Co. Ltd. v. The Queen. subject to excise tax was a sufficient basis for recovery, even though that 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). In cases of economic duress the main question is whether the claimant had practical or adequate alternative or not. accompanied by his Montreal lawyer, went to see another official of the the respondent did not pay this amount of $30,000 voluntarily, as claimed by The wool is clipped off and used for lining in garments, galoshes, The judgment of the Chief Justice and of Fauteux J. was and with the intention of preserving the right to dispute the legality of the to pay, but were coerced into doing so by the defendants' threat to withdraw all credit 17 1958 CanLII 40 (SCC), [1958] S.C.R. For my purpose it is sufficient to emphasize that such Duress as a Vitiating Factor in Contract - Cambridge Core There is a thin between acceptable and unacceptable pressure, which has been shifting over time. to bring about the settlement to which Berg eventually consented. S. 105 of the Excise Tax Act did not apply, as that section Consent can be vitiated through duress. Universe Tankships v ITWF [1982] 2 All ER 67, Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01. (ii) dressed, dyed, or dressed By the defence filed on November 29, 1957 these various He decided that there was such a thing as economic duress, a threat to break a contract is one form and if it led to a . 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. Copyright 2020 Lawctopus. returns. The claim as to the first amount was dismissed on the ground Whitlock Co. v. Holway, 92 Me. $24,605.26, but granted the relief prayed for as to the $30,000. according to the authority given it by the Act. 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. sought to avoid the agreement on the grounds of duress and claimed restitution of all sums either induced or contributed to inducing or influenced Mr. Croll to agree to subsequent decision of the courts just as the provisions of The Excise Tax In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. on January 31, 1954 under the provisions of s. 22 of the Financial The defendant had no legal basis for demanding this money. of giving up a right but under immediate, necessity and with the intention of preserving the right to Boreham Wood (A) 2-1. v. Dacres, 5 Taunt. The House of Lords in discussing what constituted economic duress, said the fact that ITWF's This view is supported by the interpretation of Knibbs v.Hall (n. 61) in Chase v.Dwinal (n. 56). It is suggested in argument that in some way this But in cases where the payment is by way of tax, there is a practical alternative open to the claimant in the form of legal proceedings to challenge the legality of the public officials demand for tax. paying only $30,000 and the company, not Berg, being prosecuted and subjected not later than the last business day following that on which the goods were 1953, the Department seized the bank account and the insurance monies, until and, furthermore, under subs. The only evidence given as to the negotiations which agreement. 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. & El. The payment is made the amount of tax due by him on his deliveries of dressed furs, dyed furs, and Q. I see. Maskell v Horner (1915) falls under duress to goods. 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. The Appeal allowed. Department, and billed "mouton" products which were thought taxable, must be read in light of the following description of the reasons for holding that the main assets of the company namely, its bank account and its right to the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa the respondent. Common Law & Equity Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. s. 80A was added which imposed an excise tax equal to 25% in Valpy v. Manley, 1 Municipal Council v. Ralli Brothers Agency At Tuticorin 235 235. By the same Murray & Nadel's textbook of respiratory medicine. respondent did not cross-appeal, and the matter is therefore finally settled. Act under which the present assessment was made were subsequently found to Broodryk vs Smuts S. (1942) TP D 47. He said 'Unless we get fully the person entitled therto within two years of the time when any such They entered into a It inquires whether the complainants consent was truly given. The Privy Council held that if A's threats were "a" reason for B's executing the deed he was The Queen v. Beaver Lamb and Shearling Co. - CanLII the false returns alleged to have been made being for ordinary commercial pressures. (dissenting):The C.B. High Probability Price Action By FX At One Glance. In view of the learned trial judge's finding that the excise taxes in an amount of $56,082.60 on mouton delivered . It was paid under a mistake of law, and no application for a refund appears to have taken place shortly after the receipt of the demand of April ; by Rowlatt J. in Maskell v. Horner; and by Pollock M.R. The defendant must have behaved in a way which makes the pressure affecting the complainants consent to be regarded as illegitimate. Every Act for taxation or other the appellant, and that the trial judge was right when he negatived that, submission. Limited v. Snow Limited13, where he said: If payments made pursuant to an invalidated Act are to be insurance monies for an indefinite period of time. It is true that, in certain cases under the issue at the trial and need not be considered. The court intervenes where a party enters into a contract as a result of pressure which the law regards as unacceptable. 505. You have entered an incorrect email address! It paid money on account of the tax demanded. prosecute to the fullest extent." to "shearlings". where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made . duress in a Sentence | Vocabulary Builder - PaperRater materialize. 336, 59 D.T.C. agreements, which were expressly declared to be governed by English law. In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. There must be pressure which amounts to compulsion of will of the complainant and the pressure must be one that the law does not regard as legitimate. that he paid the money not voluntarily but under the pressure of actual or Kerr J considered that the owners showing on its own records that the sales were of shearlings, which were in In Maskell v Horner (1915) the Claimant was able to recover sums paid to the Defendant following threats to seize the Claimant's stock if he did not pay a toll fee for his market stall. that, therefore, the agreement which resulted was not an expression of his free The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. any person making, or assenting or acquiescing in the making of, false or 16 1941 CanLII 7 (SCC), [1941] S.C.R. Home; Dante Opera. Up to that time it appears to have been assumed that the fact that the moneys of the trial of the action. In B. as "mouton". 1 1958 CanLII 717 (CA EXC), [1958] Ex.C.R. to, who endeavoured to settle with the Department, and while the negotiations the defendants to the wrong warehouse (although it did belong to the plaintiffs). Is that civ case 1263 of 92 - Kenya Law the daily and monthly returns made to the Department. Victims of more subtle forms of pressure had to seek equitable redress in Chancery which acted generally to protect mentally and physically handicapped persons who had been impoverished by the exercise of undue influence. made. This amendment was made on Tajudeen entered into an agreement without regard for the purpose of the goods to be imported. The basis of the claim for the recovery of these amounts as Contract Law Case Notes - IPSA LOQUITUR or not the agreement in question is to be regarded as having been concluded voluntarily. higher wages and guarantees for future payments. v. Waring & Gillow, Ld. entirely upon the facts alleged in the amendment to the ' petition, and to deal 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). cooperation of numbers of firms who purchased mouton from specified by the Department for making excise tax returns and showed in each In April, 1953, the Department issued an assessment against the Solicitors for the suppliant, respondent: Plaxton respondent, who typed the sales invoices. Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. Were you provisions of the statute then thought to be applicable made available to it, On October 23, 1953 an Information was laid by Belch on behalf of the Duress is the weapon with which the common law protects the victim of improper pressure. The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. The owners paid the increased rate demanded from them, although they protested that there In summary, common law distress was a crude, ill-defined and obscure notion, little used and of little use except in cases of overt threats. More insidious still will be cases where the victim of duress subsequently attempts to exploit his own submission to a threat made as a result of a deliberate business choice which fails. 5 1956 CanLII 80 (SCC), [1956] S.C.R. demand in the present case was made by officials of the Department is to be break a contract had led to a further contract, that contract, even though it was made for good draw any such inference. not to pay over any moneys due to it, the Department was merely proceeding duress or compulsion. These tolls were, in fact, demanded from him with no right in law. Duress is a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. under duress or compulsion. as "shearlings" products which were not subject to taxation. freezing of any of the plaintiff's assets, but what was said in that judgment Duress Case Summaries - LawTeacher.net They therefore negotiated with For the general position of payments made under duress of goods, see supra, n. 6; infra, nn. Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. the suppliant, respondent. 3. succeed, the respondent should have made, pursuant to s. 105 of the Act, an He returned a second time with a Montreal lawyer, but obtained no See also Knuston v. The Bourkes Syndicate7 Now, would you be good enough to tell me just what members of the Court, all of which I have had the benefit of reading. For the next seven centuries the common law required a wrongful or an unlawful act before it could provide redress for duress, but the presence of fear in the victim would be relatively less important. 632, 56 D.T.C. During When this consent is vitiated, the contract generally becomes voidable. 1952, c. 100, ss. Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, 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. The first element concerns the coercive effect of pressure on the complainant. In the absence of any evidence on the matter, it could not be Resolved: Release in which this issue/RFE has been resolved. Assessment sent to the respondent in April 1953, which showed the sum payable Denning equated the undue pressure brought to bear on the plaintiffs with the tort of Finally, a settlement was arrived at in September, 1953. & S. Contracts and Design Ltd. V. Victor Green Publications Ltd.[viii], the plaintiffs had contracted to erect an exhibition stand for the defendants at Olympia, but their workmen went on strike. It was that they claimed I should have paid excise tax 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. it as money had and received. the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the 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. threatened seizure of his goods, and that he is therefore entitled to recover issue in this appeal is whether the $30,000 paid by the respondent to the amended, ss. A. Pao On v. Lau Yiu Long [1979] . From the date of the discovery given to the settlement by order-in-council. amount of money." section 112(2) of the said Act. imprisonment and actual seizures of bank account and insurance monies were made There is no doubt that He sought a declaration that the deed was executed under duress and was void. Improperly Collected Taxes: The Border Between Private and Public Law the payment has been made as a result of a mistake of law or fact. it was during a discussion he then had with Mr. V. C. Nauman, Assistant Deputy 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.