Duress Vitiating factors Duress and Undue Influence are "vitiating factors". They make an otherwise valid contract "voidable" (not void). The "innocent" party can choose whether to continue with the contract or not. Origin of Duress Common law concept. Its origin is in the use of physical violence or threatened violence to make someone enter into a contract. Example: If A hold a gun to B and threatens to shoot if he does not sign a contract. Barton v Armstrong [1976] AC 104 - Armstrong was a politician and the chairman of a company with the largest shareholding while Barton was the MD. - Armstrong was not liked by Barton and other directors and they sought to withdraw credit facilities available to him. - Armstrong tried to force Barton to buy all his shares at a substantial amount by threatening to kill him. - Barton agreed partly because of the threat, and because he wanted to get rid of Armstrong - Subsequently, the company became insolvent, and Barton was to shoulder the loss being the majority shareholder. - He tried to set aside the agreement for duress - Judgement was in his favour - Victim did not really agree to the contract because his or her "will was overborne". Physical duress: Requirement 1. An illegitimate means of persuasion and 2. A connection between the illegitimate means and the action taken. - Establishes the test to determine whether there was a sufficient causal link between the pressure and the decision to enter the agreement.
- Threat need not be 'the reason', but 'a reason' amongst many others. - Regardless of if the party would have entered the contract in the absence of the threat. - Onus is on the threatener to show that the threat did not contribute to entering the contract Definition "Physical threat or other illegitimate pressure being used for an improper objective which is sufficiently serious to vitiate the consent of the other party"- R v Attorney General - Soldier wanted to publish a book on his experience during the Gulf War. - AG brought an action for breach of contract of confidentiality - Soldier claimed it was signed under duress. He will be 'Returned to Unit' which meant demotion and social exclusion. - Court gave judgement in favour of the soldier. - On appeal, PC dismissed the appeal. - Held that there was pressure, but pressure was legitimate. - Contract was enforceable. Illegitimate pressure Lord Hoffman- started by referring to the decision of the H of L in Universe Tankships Inc of Monrovia v ITWff, The Universe Sentinel [1983] 1 AC 366. In The Universe Sentinel, Lord Scarman identified two elements to duress (1) pressure amounting to compulsion of the will (2) the illegitimacy of that pressure. - As regards the illegitimacy of the pressure, two issues arise - (1) the nature of the pressure - (2) the nature of the demand which the pressure is applied to support. - As regards the nature of the pressure, where