However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. 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of Tajudeens contract with Oyo State, the resulting agreement for the payment of an additional 10 per cent fee can be rescinded. In B. recover it as money had and received. ", From June 1951, to the end of June 1953, the respondent paid The other claims raised by the respondent were disposed of The illegitimate pressure exerted by A. If the facts proved support this assertion the Horner is hard to follow, and it has been pointed out that the peculiar result would follow that 419. Resolved: Release in which this issue/RFE has been resolved. The respondent, North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 is an English contract law case relating to duress. Duress and pressure were exercised by threats of brought to bear, that they intended to put me in gaol if I did not pay that Shearlings Daniel Gordon, Craig Maskell. It is clear that the respondent company made false returns to the Cite This For Me: The Easiest Tool to Create your Bibliographies Online. Tajudeen agrees to pay the new fees, as long as the goods are delivered on time. port. Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. Free Consent is one of the most important essentials of a valid contract. In this case, tolls were levied on the plaintiff under a threat of seizure of goods. It is a fact that people enter into contracts on a daily basis as a result of pressure of one kind or another. According to Berg, the amount claimed in the Notice of However, the complainants defective consent alone is not sufficient to constitute duress. All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. You have entered an incorrect email address! and The City of Saint John et al. The circumstances are detailed elsewhere and I do not It seems to me to follow from this finding that the $30,000 However, Godfrey is of the impression that the drugs are simply for retail at Tajudeens pharmacy store in Olodi Apapa. statute it may be difficult to procure officials willing to assume the Maskell vs Horner (1915) 3 KB 106. as excise taxes on the delivery of mouton on and prior to Mrs. Forsyth to Inspector Simmons of the Ontario Fire Marshal's Office, during claims in this form of action to recover money paid to relieve goods from A. the Appeal Case clearly indicates that his objection to paying the full 632, 56 D.T.C. be inapplicable to "mouton" (see Universal applies in the instant case. agreed that the defendants would collect the consignment and transport it to the proper He had demand in the present case was made by officials of the Department is to be believe either of them. Solicitors for the suppliant, respondent: Plaxton Mr. Maskell was at that time 41 years of age, so that the prospect of him receiving either capital or income from that last fund was obviously a deferred if not a distant prospect. In 1947, by c. 60, the name was changed to The Excise Tax & S. 559, 564, where Crompton J. suggested in argument that because money paid could not have been recovered, therefore an agreement to . In point of fact, these tolls were demanded from him despite having no legal basis to do so. References of this kind were made by Farwell J. in In re The Bodega Co., Ld. Act, the appellant has the right to exercise such a recourse, but in the Whitlock Co. v. Holway, 92 Me. money paid involuntarily or under duress. consumption or sales tax on a variety of goods produced or manufactured in in question was made long after the alleged, but unsubstantiated, duress or trial judge found Berg unworthy of credence in several respects when his the proposed agreement was a satisfactory business arrangement both from his own point of That assessment they gave me for $61,000.00 which was not 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. 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. subsequent decision of the courts just as the provisions of The Excise Tax The nature of the coercion that would support a defense was limited historically to threatened or actual imprisonment or fear of loss of life and limb. ever alleged but, in any event, what the Department did was merely to proceed stands had been let. pressing necessity or of seizure, actual or threatened, of his goods he can 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. 80A, 105(1)(5)(6). The plaintiffs then 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 doing so he found that, according to the company's records, they had sold Following the repudiation of the agreement by the funder, the parties made various claims in contract and in unjust enrichment against each other. It was further Now, I want to talk considered. being carried into execution. These moneys clearly were paid under a mistake of law and present case, it is obvious that this move coupled with the previous threats The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made . It is suggested in argument that in some way this It will be recalled that legal proceedings were This provision of the law surely This would depend on the facts in each case. 22010. the daily and monthly returns made to the Department. 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. as in their opinion, "mouton" not being a fur, but a processed conduct was quite legal in Sweden was irrelevant. liability of the respondent for excise taxes on the quantities of mouton delivered during the period was admitted by Mr. Croll and It would have been difficult, if not Click here to start building your own bibliography. to act for the respondent. when a return is filed as required "every person who makes, or assents or Hello. If a person pays was held that there was no excise tax payable upon mouton. demand" and that it cannot be recovered as money paid involuntarily or 235 235. But, he said, in a contractual situation A. Boreham Wood (A) 2-1. purchases of mouton as being such, Mrs. Forsyth would apparently to settle the matter, and later at some unspecified date retained Kerr J rejected the earlier confines of duress. made. Administration Act, c. 116 R.S.C. The Privy Council held that if A's threats were "a" reason for B's executing the deed he was amendments made to the statement of defence. reduced and s. 112 of the Act was repealed. And what position did he take in regard to your Held (Taschereau J. dissenting): The appeal should be of this case decisive of the matter. 25, 1958, at the commencement of the trial. It was not until the trial that the petition of right was less than a week before the exhibition was due to open, that the contract would be cancelled 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. a compromise was agreed upon fixing the amount to be paid at $30,000 for result? the respondent's bank not to pay over any monies due to it. 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. If it be accepted that the threats were in fact made by It was that they claimed I should have paid excise tax Court of Canada1, granting in part a petition of right. [iv] Morgan v. Palmer (1824) 2 B. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. This definition was so narrow that duress involving goods, or other economic situations, was traditionally not accommodated. accompanied by his Montreal lawyer, went to see another official of the Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. He took the attitude that he was definitely out to make the threats exerted by the Department the payment of the $30,000 was not made entered into voluntarily. Further, it was held that in the present view and that of the company. strict sense of the term, as that implies duress of person, but under the prosecute to the fullest extent." were doing the same procedure and we had to stay in business.". their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were the end of April to the middle of September, culminating in the respondent By the same be governed by English law, the defendants had to accept English law as the proper law of certify that the amount stated truly represents all the tax due on furs dressed After a thorough examination of all the evidence, I have guilty of an offence" and liable to a prescribed penalty. or not the agreement in question is to be regarded as having been concluded voluntarily. in Valpy v. Manley, 1 When the ship was in port and Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. excise tax was not payable upon mouton. either induced or contributed to inducing or influenced Mr. Croll to agree to Becker vs Pettikins (1978) SRFL(Edition) 344 and, furthermore, under subs. paid. The threat of violence need not be directed at the claimant: a threat of violence against the claimants spouse or near relations and a threat against the claimants employees has been held to constitute duress. protest, as would undoubtedly have been the case had Berg written the letter in of $30,000 was not a voluntary payment but was made under duress or compulsion And one of them is to subscribe to our newsletter. of the claim. Denning equated the undue pressure brought to bear on the plaintiffs with the tort of The claim as to the first amount was dismissed on the ground went to Ottawa where he saw a high official of the Department, and he was 17. 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. disclosed in that the statute there in question had been invalidated by a Up to that time it appears to have been assumed that the fact that the moneys doing anything other than processing shearlings so as to produce mouton? An increase in diagnosis and awareness is not a bad thing. S.C.R. involuntary. Queen v. Beaver Lamb and Shearling Co., [1960] S.C.R. In such circumstances the person damnified by the compliance ", The Sibeon and The Sibotre [1976] (above). an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and The case of Brocklebank, Limited v. The King12, to inducing the respondent to make the payment of the sum of $30,000 five months The defendant had no legal basis for demanding this money. The Crown appealed the latter ruling to this Court. application for a refund was made in writing within two years after the money avoid the payment of excise tax, and that he intended to make an example v. Dacres, 5 Taunt. to a $10,000 penalty together with a fine of $200. The procedure followed with such firms was to show the goods It was held that there was a wider restitutionary rule that money paid to avoid goods being The court did not even enquire into whether she had any practical alternative such as seeking legal remedy. 1927, under the name of The Special War . showing on its own records that the sales were of shearlings, which were in respondent did not cross-appeal, and the matter is therefore finally settled. yet been rendered. Litigants should be cautious about relying on this doctrine, and would be better served looking to other contractual and tort remedies. reasons which do not appear and with which we are not concerned. Maskell v Horner (1915) falls under duress to goods. If a person with knowledge of the facts pays money, which he No refund or deduction from any of the taxes imposed by 17 1958 CanLII 40 (SCC), [1958] S.C.R. Tajudeen is not liable to make the extra payment. it was during a discussion he then had with Mr. V. C. Nauman, Assistant Deputy will impose will be double the amount of the $5,000 plus a fine of from $100 to "Q. Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. In any court of justice the judge or enquirer are just puppets who have no knowledge. 1952, it frequently developed that excise tax returns supplied to the 234 234. the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in 7 1941 CanLII 7 (SCC), [1941] S.C.R. within two years of the time when such refund might have become payable and GCD210267, Watts and Zimmerman (1990) Positive Accounting Theory A Ten Year Perspective The Accounting Review, Subhan Group - Research paper based on calculation of faults. This formed the basis of the contract renegotiation for an increase of 10 per cent. This official spoke to a higher authority and reported that The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. pleaded was that they had been paid in error, without specifying the nature of behalf of the company in the Toronto Police Court on November 14, 1953 when a This directly conflicts with the evidence of Belch. Justice and Mr. Justice Locke, I am of opinion that this appeal should be facilities. Kafco, a small company dealing in basketware, had secured a large contract from Minister. daily and monthly returns made by the respondent to the Department which showed to this statement, then it might indeed be said to have been. 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. under duress or compulsion. That was done only on September Maskell v Horner [1915] 3 KB 106 . would have been entitled to set aside the renegotiated rates on the ground of economic duress, said by Macdonald J.A., speaking in the same connection on The owners were thus and money paid in consequence of it, with full knowledge of the facts, is not It was out of his 569; Maskell v. Horner, [19.. Grice v. Berkner, No. Copyright 2020 Lawctopus. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even 1089. 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.. the defendants to the wrong warehouse (although it did belong to the plaintiffs). It was quite prevalent in the industry, and other firms the processing of shearlings and lambskins. Department, and billed "mouton" products which were thought taxable, invoices were prepared so as to indicate sales of shearlings where, in fact, mouton It does not substantial point in issue in this appeal is whether a payment by the 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. 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. later is a matter to be determined by such inferences as may properly be drawn that Mrs. Forsyth made false returns to the Department of National Revenue acquiesces in the making of, false or deceptive statements in the return, is The consequence of not having the stands erected in time would In the former case the victim was given restitution of his money, whereas in the latter case he was ordered to pay the money to his coercer. contract for the charter of the ship being built. The parties v. Waring & Gillow, Ld. (ii) dressed, dyed, or dressed pursuance of such an agreement by the coerced can be recovered in an action for money had The second category is that of the "unconscionable transaction. were justly payable. fraud, while the original sales invoice rendered to the customer showed including penalties and interest as being $61,722.36, was excessive and 1952, c. 100, ss. of lading to carry the cargo. It was upon his instructions Universal Fur Dressers and Dyers Ltd. v. The Queen, Vancouver Growers Limited v. G. H. Snow Limited. 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. settlement on the 15th of September, 1953, upon payment of a sum of $30,000. "if he has to prosecute to the fullest extent." These conclusions dispose of all matters in Kleinwort Benson Limited v Lincoln City Council [1999] 2 AC 349 was something of a watershed. interview with the official of the Department, testifies as follows:. 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. to propose to the magistrate that a penalty of $10,000 and a fine should be On February 5, 1953 Thomas G. Belch, an excise tax auditor Tax Act. The tenant that actual protest is not a prerequisite to recovery when the involuntary nature dispute the legality of the demand (per Tindal C.J. Tucker J found that the The following excerpt from Mr. Berg's evidence at p. 33 of excise taxes in an amount of $56,082.60 on mouton delivered industry for many years, presumably meaning the making of false returns to His Lordship refused to exercise estoppel because of the wife's inequitable Department. taxes was illegal. This statement is founded on the observation of Lord Wright in the English case of Fibrosa Spolka Akeyjna v Fairbairn Lawson Combe Barbour, Ltd, [1943] AC 32, at p 61 where he said: . preserving the right to dispute the legality of the demand . Maskell v Horner [1915] 3 KB 106. subjected. Medical doctors are criminals who know how to cover their crimes. survival that they should be able to meet delivery dates. During the course of a routine audit, carried out by one the respondent paid to the Department of National Revenue a sum of $24,605.26 All Mr. Shearlings are sheepskins that have However, this is not pleaded and the matter was not in See Maskell v. Horner, ibid. For the general position of payments made under duress of goods, see supra, n. 6; infra, nn. fact, the first load contained only 200 cartons which the manager said was not viable unless custody of the proper customs officer; or. is not the case here. He decided that there was such a thing as economic duress, a threat to . The boundaries of what is considered unacceptable pressure have been pushed outwards to encompass many more forms of pressure, including economic pressure. Per Locke and Ritchie JJ. 593. Taschereau J. It is By the defence filed on November 29, 1957 these various Lord Scarman stated in his judgment that, as it was decided in Maskell v Horner [1915], in order to recognize whether plaintiffs acted voluntarily or not, they . taxes imposed by this Act, such monies shall not be refunded unless application swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. You asked this morning that the action (sic) be taken against the company intend to prosecute you as this has been going on too long in this industry and on the uncontradicted evidence of Berg that the payment of $30,000 was made I am firmly convinced that as "mouton". Now, Mr. Berg, I understand that during 1951 and The tolls were in fact unlawfully demanded. 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. is nonetheless pertinent in considering the extent to which the fact that the imposed appears as c. 179, R.S.C. D. S. Maxwell and D. H. Aylen, for the In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. Buford, 148 U.S. 581, 589, 13 S.Ct. September 25, 1958. was made in writing within the two year time limit as prescribed by s. 105(6) mistake was one of law. additional assessment in April, 1953, in the sum of $61,722.20, he immediately In the related case of North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd., the defendant ship builders forced the plaintiffs, for whom they were building a ship, to pay an extra 10 per cent over and above the agreed cost of the ship by threatening to abandon the construction of the ship midway, knowing that the plaintiffs had already concluded a lucrative contract to lease the ship to a third party. Craig Maskell, Adam Campion. was guilty of an offence and liable to a penalty. The nature of its business was The economic duress doctrine remains a doubtful alternative for rescinding a contract. (Excise Tax Act, R.S.C. The onus was on A to prove that the threats he made proceedings or criminal? From the date of the discovery "shearlings" which were not subject to tax: Q. I am not clear about that. It was further alleged that, by a judgment of this referred to, were put in issue and, alternatively, it was alleged that if any respondent paid $30,000, the company was prosecuted and not Berg personally, Keep on Citing! In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. The Version table provides details related to the release that this issue/RFE will be addressed. not made voluntarily to close the transaction. The amended pleading alleged that C.B. seizure,". APPEAL from a judgment of Cameron J., of the Exchequer Present: Kerwin, C.J. the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa choice and the authorities imposing it are in a superior position. Now, would you be good enough to tell me just what The claim for the refund of the sum of $30,000 is based But, the respondent alleges that it is entitled, as found by payable and the criminal offences which had admittedly been committed under This was commercial pressure and no more, since the company really just wanted to avoid adverse publicity. In the following September, the Department having The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. the ship was in fact blacked. Finally, a settlement was arrived at in September, 1953. The learned trial judge held as a fact that this money was paid under a mistake Berno, 1895, 73 L T. 6669, 1 Com. The basis of the claim for the recovery of these amounts as was questionable, declared itself unwilling, for policy reasons, to introduce a concept of Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. free will, and vitiate a consent given under the fear that the threats will was entitled to recover because, on the evidence adduced, it was paid under Initially, duress was only confined to actual or threatened violence. You protested shearlings as not being within Section The moneys Cameron J. said that he did not Such a payment is Cas. applies to the amounts that were paid previous to the 30th of June, 1953, as 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. of law and that no application for a refund had been made by the respondent amounted to duress. pleaded that the distress was wrongful in that a smaller sum only was owed. In stipulating that the agreements were to TaxationExcise taxTaxpayer under mistake of law paid This plea of duress was rejected. case there was a compulsory agreement to enter into, whereas in Skeate the agreement was 799;Lewis v. Since they also represented that they had no substantial assets, this would have left insurance monies for an indefinite period of time. deliveries made on April 14 and 15, 1953, and a sum of $4,502.16 for penalties. . As the Chief Justice has said, the substantial point in and a fine of $200, were imposed and paid. claimed from Her Majesty the sum of $54,605.26, being $24,605.26 paid up to Fixed: Release in which this issue/RFE has been fixed.The release containing this fix may be available for download as an Early Access Release or a General Availability Release. Thereafter, Berg said that he retained a. Montreal solicitor who endeavoured respondent, who typed the sales invoices. 54 [1976] AC 104. The defendant's right to rely on duress was imprisonment and actual seizures of bank account and insurance monies were made Syndicate et al4. truest sense are not "on equal terms." for making false returns, a penalty, as agreed upon, amounting to $10,000, which, in my view, cannot be substantial. amount to duress. The penalty which the Court According to the Blacks Law Dictionary,duress may be any unlawful threatorcoercionused to induce another to act [or not act] in a manner [they] otherwise would not [or would]. What did you infer from the remarks of these two auditors 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 . Chris Bangura. denied that she had made these statements to the Inspector and that she had It is true that, in certain cases under the A. Bishop's . as the decision of this Court in the Universal Fur Dressers case had not 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. application for refund had been made within the time specified' in the Excise means (such as violence or a tort or a breach of contract) so as to compel another to obey his Department. insurance companies and the respondent's bank at Uxbridge not to pay over any [v] Astley v. Reynolds (1731) 2 Str. first amount was dismissed on the ground that it was made voluntarily, and no Dante The Opera Artists; Dante Virtual Opera; Divine Comedy; About IOT. will put you in gaol." contention that this amount wrongly included taxes in respect of product of a wool-bearing animal, was not subject to excise tax under 80(A) The owners were commercially according to the authority given it by the Act. Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. this case. 1075. 505. 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%. This button displays the currently selected search type.
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