> If the clause is not rendered ineffective by the above sections or does not relate to such contracts, consider whether it is unfair and therefore invalidated under Part 2 CRA. > If the term purports to exclude liability for death or personal injury as a result of negligence, it is ineffective- sec 65(1) CRA. > If the term is on the 'grey list', the court is likely to consider it unfair in the absence of evidence to the contrary. > If the term is not listed, consider the meaning of unfairness as indicated in sec 62(4) CRA. Check that the term is not excluded from assessment for fairness under sec 64(1) (ie if it specifies the main subject matter or price). > Note that such core terms must be transparent and prominent to avoid the assessment as to fairness- sec 64(2). > 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. > Common law concept. > Its origin is in the use of physical violence or threatened violence to make someone enter into a contract. Barton v Armstrong [1976] AC 104 1 Victim did not really agree to the contract because his or her "will was overborne". > "Physical threat or other illegitimate pressure being used for an improper objective which is sufficiently serious to vitiate the consent of the other party" > Lord Hoffman- started by referring to the decision of the H of L in Universe Tankships Inc of Monrovia v ITWF, 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 the threat is to carry out some unlawful act, the pressure would generally be considered illegitimate. >But, this does not necessarily mean that the threat of a lawful action would automatically be legitimate because the second issue could arise. > The second issue looks at the objective of the threat. > Lord Hoffmann quoted Lord Atkin in Thorne v Motor Trade Association [1937] AC 797 "The ordinary blackmailer normally threatens to do what he has the perfect right to do, namely communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened ... What he has to justify is not the threat, but the demand of money" Threat to break a contract - Occidental Worldwide Inv. v Skibs, The Siboen and The Sibotre [1976] 1 Lloyd's Rep 293 North Ocean Shipping Co v Hyundai Construction, The Atlantic Baron [1979] QB 705 ¨ Industrial action- Universe Tankships Inc v ITWF, The Universe Sentinel [1983] 1 AC 366