Audio recording 17.1 transcript
Duress, like misrepresentation, can make a contract voidable. So, duress isn't a tort, excuse wise in itself to have claimed the damages, but it can make a contract voidable, and it's a very long standing. But now when we think about duress, we split it into two major elements, ignoring duress to goods for now. There's duress to the person, so physical act duress, and economic duress. So, threats to a person's economic interests. And physical act duress is by far the better established. So, it's long been clear that if I put a gun to your head, and say, sign this contract or I'll blow your brains out, then very clearly I shouldn't be able to enforce that contract against you. But it's important that even here the effect of duress is to make the contract voidable, not void. Economic duress, on the other hand, is relatively new. So, it's only really been developed by the courts over the last forty years, and its boundaries are still evolving and not entirely clear. But if I put such economic pressure upon you then maybe the contract should be voidable because there's been coercion of your will in an illegitimate manner. And in fact, economic duress now looks to be of increasing importance. So, after decisions such as Williams v Roffey, which we looked at in chapter seven, courts might be more willing to find that there is consideration, for example, to vary a contract, because there will be a practical benefit. Because they think that if the agreement has not been entered into freely, then it will be voidable for duress. So, when you're thinking about a claim for duress, you need to establish that there has been a threat or illegitimate pressure. And that that is a reason that the claimant's entering into the contract, and that they had no reasonable, practical alternative to do so. I think that's important. If the claimant had a reasonable, practical alternative, so they didn't have to succumb to the pressure and it should have pursued that practical alternative. But now there's a lot of discussion about the scope of illegitimate pressure. And I think that's a really interesting area of debate at the moment. So, should all breach of contract count as illegitimate pressure? Any threat to breach of contract, would that constitute an illegitimate pressure? Because a breach of contract is illegitimate, it's an unlawful act you might say. I think that's probably the case, but the next issue is whether or not even lawful acts could count as illegitimate pressure. So, the lawful act duress should be recognized. And there's hints in the cases that it should be, but I don't think any cases decided as a matter of ratio that lawful act duress exists. And the Supreme ourt is due to hear the appeal in Times Travel in November, 2020. And they might provide further guidance on this question. So, Times Travel (UK) Ltd v Pakistan International Airways Corporation is an important case to look out for.