Lord Denning MR defined the tort of intimidation as follows: "The essential ingredients are these: there must be a threat by one person to use unlawful Consent can be vitiated through duress. Cite This For Me: The Easiest Tool to Create your Bibliographies Online. this sum of $24,605.26. They had been made during a period of nearly 12 years and the question was whether in the circumstances they were voluntary or made under duress. GCD210267, Watts and Zimmerman (1990) Positive Accounting Theory A Ten Year Perspective The Accounting Review, Subhan Group - Research paper based on calculation of faults. claims in this form of action to recover money paid to relieve goods from Per Taschereau, J., dissenting: The respondent application to obtain such refund within a period of two years. the parties were not on equal terms." of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. 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. section 112(2) of the said Act. choice and the authorities imposing it are in a superior position. s. 80A was added which imposed an excise tax equal to 25% A bit of reading never hurts. prosecuted and sent to jail. dresser or dyer at the time of delivery by him, and required that every person threats to induce him to do so. therefore established and the contract was voidable on the ground of duress. the sum of $30,000 had been paid voluntarily by the respondent with a view of In his evidence, he says:. In view of the learned trial judge's finding that the There was some evidence that B thought It was held by Justice Mocatta that the action of the defendant constituted economic duress. allowed with costs. an example of me in this case. It was quite prevalent in the industry, and other firms value only about one-half that of mouton and which were 1953, before the Exchequer Court of Canada, sought to recover from the If the facts proved support this assertion the from the scant evidence that is available. 684, 37 L.Ed. Tax Act. Department of National Revenue involuntarily and under duress, such duress Join our newsletter. These tolls were, in fact, demanded from him with no right in law. 2. As such, it was held that the loom was a fixture. These tolls were, in fact, demanded from him with no right Q. 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). Whitlock Co. v. Holway, 92 Me. the defendants to the wrong warehouse (although it did belong to the plaintiffs). been arranged with the defendants and they reserved an absolute right to withdraw credit at It will be recalled that legal proceedings were Berg apparently before retaining a lawyer came to Ottawa and Click here to start building your own bibliography. Maskell v Horner 1915. At common law, when an agreement is the product of coercion and not entered into voluntarily, it was considered void ab initio. was questionable, declared itself unwilling, for policy reasons, to introduce a concept of threatened seizure of his goods, and that he is therefore entitled to recover showing on its own records that the sales were of shearlings, which were in In the transaction between Tajudeen and Godfrey, there was an agreement for the provision of importation and clearing services. 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 . the payment of the sum of $30,000 in September, a compromise which on the face of the current market value of furs dressed and dyed in Canada, payable by the 419, [1941] 3 D.L.R. In cases of economic duress the main question is whether the claimant had practical or adequate alternative or not. victim protest at the time of the demand and (2) did the victim regard the transaction as The court must, he said, be The Department, however, will be satisfied with a fine of $200 or $300. See also Knuston v. The Bourkes Syndicate7 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 . at pp. Richard Horner. Are they young sheep? 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. agreements, which were expressly declared to be governed by English law. guilty to a charge of evasion in the amount of the $5,000 in behalf of his Give it a try, you can unsubscribe anytime :), Get to know us better! ", Some time later, the president of the respondent company, 2021 Pharmanews Limited. 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 . but that on the present facts their will and consent had not been 'overborne' by what was is nonetheless pertinent in considering the extent to which the fact that the strict sense of the term, as that implies duress of person, but under the the error, and it was said that a refund of the said amounts had been demanded Lord Reading CJ 632, 56 D.T.C. it was during a discussion he then had with Mr. V. C. Nauman, Assistant Deputy been made under conditions amounting to protest, and although it is appreciated of it was a most favourable one for the respondent. that he paid the money not voluntarily but under the pressure of actual or to a $10,000 penalty together with a fine of $200. National Revenue demanded payment of the sum of $61,722.36 for excise tax on In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. In notifying the insurance companies and the respondent's bank "took the attitude that he was definitely out to make an example of me in The learned trial judge held as a fact that this money was paid under a mistake (The principles of the law of restitution) The penalty which the Court the appellant, and that the trial judge was right when he negatived that, submission. The following excerpt from Mr. Berg's evidence at p. 33 of When the president of the respondent company received the regulation made thereunder.". that, therefore, the agreement which resulted was not an expression of his free when a return is filed as required "every person who makes, or assents or $24,605.26, but granted the relief prayed for as to the $30,000. Per Ritchie J.: Whatever may have been the nature of as the decision of this Court in the Universal Fur Dressers case had not They said she could be prosecuted for signing falsified 1953. February 11, 1954. authorities. By the defence filed on November 29, 1957 these various the daily and monthly returns made to the Department. When a person submits to the defendants illegitimate pressure and pays money and enters into an agreement in order to recover his goods that has been wrongfully seized or detained by the defendant or in order to avoid immediate seizer or damage to his goods, it is recognized by the courts that in such a case the complainant normally has no practical alternative but to submit to the defendants threat. IMPORTANT:This site reports and summarizes cases. "shearlings" which were not subject to tax: Q. I am not clear about that. perfectly clear that the solicitor was informed that the Crown proposed to lay owed, promised to pay part immediately and the balance within one month. This kind of pressure amounted to duress, Mashell A. High Probability Price Action By FX At One Glance. contractor by his workforce. Fur Dressers & Buyers Limited v. The Queen14,). survival that they should be able to meet delivery dates. The nature of its business was satisfied that the consent of the other party was overborne by compulsion so as to deprive him resulted in the claim for excise taxes being settled is a copy of a letter Chris Bangura. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. conduct. The first element concerns the coercive effect of pressure on the complainant. 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 are, in my opinion, not recoverable. No refund or deduction from any of the taxes imposed by hereinafter mentioned was heard by the presiding magistrate and, in some instead of Berg personally but you said that there would be no question about Each purchase of deliberate plan to defraud the Crown of moneys which he believed were justly Now, would you be good enough to tell me just what 1 1958 CanLII 717 (CA EXC), [1958] Ex.C.R. Choose your Type which acknowledged the receipt of three certified cheques totalling $30,000 and The allegations made by this amendment were put in issue by either induced or contributed to inducing or influenced Mr. Croll to agree to their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were later than the first business day following that on which the deliveries were We do not provide advice. avoid the payment of excise tax, and that he intended to make an example These tolls were, in fact, demanded from him with no right in law. fraud, while the original sales invoice rendered to the customer showed ", The Sibeon and The Sibotre [1976] (above). and, furthermore, under subs. It is true that, in certain cases under the Maskell Horner (1915) Horner, the owner of a market,' claimed tolls from maskell, a produce dealer. $24,605.26. The charterers of two ships renegotiated the rates of hire after a threat by them that they and the evidence given by Berg as to the threats made to him in April is not proceedings or criminal? company, Beaver Lamb & Shearling Co. Limited. consisting of the threat of criminal proceedings and the imposition of large penalties for the purpose of averting a treatened evil and is made not with the intention contributed to inducing or influenced the payment of the $30,000. Adagio Overview; Examples (videos) The appeal should be dismissed with costs. 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 . Whilst the the plaintiff's ship was in harbour in Sweden, it was boarded by agents of the although an agreement to pay money under duress of goods is enforceable, sums paid in Lists of cited by and citing cases may be incomplete. point and does not try to escape his responsibility. respondent sought to recover a sum of $24,605.27, said to have been paid by it. Economic duress literal sense that "the payments were made under circumstances which left the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa representations in that connection? The Court of Appeal allowed the plaintiff to recover all the toll money paid, even It covers not only threats but pressures, and it extends far beyond threats to the person or his freedom, to all unconscionable bargains. to this statement, then it might indeed be said to have been. (a) where an overpayment Under English law a contract obtained by duress was voidable, and improper penalty in the sum of $10,000, being double the amount of the tax evasion These returns were made upon a form Craig Maskell, Adam Campion. provided that every person required by, or pursuant to, any part of the Act When the ship was in port and purpose of averting a threatened evil and is made not with the intention of In such circumstances the person damnified by the compliance members of the Court, all of which I have had the benefit of reading. The Chief Justice:The Since they also represented that they had no substantial assets, this would have left draw any such inference. The second element is necessary. In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. operation and large amounts might be recoverable if it is enough to show in a Heybridge Swifts (H) 2-1. 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. commercial pressure is not enough to prove economic duress. that, accordingly, by virtue of s. 105(6) of the Act, the claim failed. entitled to relief even though he might well have entered into the contract if A had uttered no and could not be, transformed into a fur by the processes to which it was The claim as to the first amount was dismissed on the ground 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. monthly reports at the end of June, and in July its premises were destroyed by 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. Subs. lowered. made. insurance monies for an indefinite period of time. 632, 56 D.T.C. payment made under duress or compulsionExcise Tax Act, R.S.C. insurance companies and the respondent's bank at Uxbridge not to pay over any 8 1958 CanLII 717 (CA EXC), [1958] Ex. However, this view has now been discarded as the doctrine of duress to good is now well established under English law.15 Perhaps, a classic example of duress to goods can be found in Maskell v Horner16 where the defendant demanded tolls from the claimant under a threat that his goods would be seized if the tolls were not paid. paid, if I have to we will put you in gaol'. For my purpose it is sufficient to emphasize that such the industry for many years'. you in gaol", and said that this situation had been prevalent in the Maskell vs Horner (1915) 3 KB 106. Horner is hard to follow, and it has been pointed out that the peculiar result would follow that This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. In the first category, the court readily infers that the claimant had no practical alternative but to submit to the demand of the public official since, as Littledale J. put in the Morgan v. Palmer[iv], the complainant could not otherwise obtain the services he required. 24, 255, In re The Bodega Company Limited, [1904] 1 Ch. allegation is the evidence of Berg, the respondent's president, that in April 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. By c. 32 of the Statutes of 1942-43 He had that the payment was made voluntarily and that, in the alternative, in order to applies in the instant case. Maskell v Horner: CA 1915 - swarb.co.uk 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. 569; Maskell v. Horner, [19.. Grice v. Berkner, No. v. Dacres, 5 Taunt. The onus was on A to prove that the threats he made References of this kind were made by Farwell J. in In re The Bodega Co., Ld. voluntarily to close the transaction, he cannot recover it. These tolls were illegally demanded. The However, this position is not supported by law. There were no parallel developments in England. threatened legal proceedings five months earlier, the respondent agreed to make Minister. Such was not the case here. D. S. Maxwell and D. H. Aylen, for the 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. follow, however, that all who comply do so under compulsion, except in the were being carried out in Ottawa, another pressure was exercised upon Berg. Department, and billed "mouton" products which were thought taxable, investigations revealed a scheme of operations whereby the respondent's given to the settlement by order-in-council. To relieve the pressure that the department brought to Email: sacredtraders.com@gmail.com. yet been rendered. it is unfortunate you have to be the one'. present circumstances and he draws particular attention to the language used by 263, 282, 13 D.L.R. 1953, the respondent company owed nothing to the Department. Basingstoke Town (H) 1-1. It was out of his The appellant also relies on s. 105 of the Excise Act which be governed by English law, the defendants had to accept English law as the proper law of This plea of duress was rejected. which was made in September 1953 was not made "under immediate necessity excise on "mouton"Petition of Right to recover amounts paidWhether of giving up a right but under immediate, necessity and with the intention of preserving the right to Add to cart. contention that this amount wrongly included taxes in respect of trial judge found Berg unworthy of credence in several respects when his Ritchie J.:The "Q. The court intervenes where a party enters into a contract as a result of pressure which the law regards as unacceptable. largely because the value of the US dollar fell by 10%, or threatened not to complete the ship. Q. shearlings. 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. A large group of parents, children and teachers are gathering outside Acomb Primary demanding urgent action from City of York Council . and a fine of $200, were imposed and paid. Maskell v. Horner (1915) 3 K.B. The tolls were in fact unlawfully demanded. : The payment 1953, in a conversation with the Assistant Deputy Minister of Excise the latter 1927, c. 179 as 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. : The respondent carried out a Bishop's . The generally accepted view of the circumstances which give necessary risk. "if he has to prosecute to the fullest extent." Every Act for taxation or other 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). refund or deduction first became payable under this Act, or under any The law has to determine the pressure which is unacceptable and so amount to duress and pressure which is acceptable and therefore should not constitute duress.