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Question
Edmund made a contract with Wecanvas Ltd, a small company, for the hire of a luxury white marquee for his daughter’s wedding reception, which was to take place in the garden of the family home. The contract price was £6,000, of which Edmund paid a deposit of £2,000 on contracting; the balance of £4,000 was due two days before the wedding. Three days before the wedding, the managing director of Wecanvas telephoned Edmund, saying, ‘I am so sorry sir, I have realised that we misquoted your job. In normal circumstances I’d overlook the error, but times are very hard so I must warn you that I am going to have to ask you for £7000 before we commence installation tomorrow.’ Edmund was furious and phoned round all the other marquee hire companies in the area; all were fully booked apart from Chictent Ltd, which had only one marquee available made of sparkly cerise pink fabric, which Edmund regarded as a wholly unacceptable alternative. He contacted his brother, a city solicitor, who told him that he would not be able to get a court order forcing Wecanvas to honour the original price and erect the marquee, but said, ‘Why not pay the extra £3000 now, you can easily afford it, then sue to get it back on grounds of duress when the wedding is over?’ So Edmund paid the £7000, the wedding was a great success, but he now seeks to reclaim the £3000. Advise him.
Answer guidance
Remember that you are asked to advise Edmund, who wishes to reclaim the £3000 he paid above the contract price. Because he has paid the money, this will not be an action to set aside a contract induced by economic duress, but instead a restitutionary action alleging that Wecanvas Ltd is unjustly enriched by £3000, the ground of restitution being economic duress - the meaning of ‘economic duress’ seems to be the same whatever the cause of action. So can Edmund establish economic duress? You will need to consider whether Wecanvas’s polite statement, phrased as a warning about times being hard, counts as an ‘illegitimate threat’. After all, Wecanvas did not explicitly threaten not to install the marquee unless the price was increased - should this matter? Why bother to make contracts if one party can unilaterally increase the price if finances are tight by ‘asking nicely’?! Secondly, what is the relevance of there being an (unacceptable) alternative marquee available - is this to be judged in the same way as the adequacy of other legal remedies open to the victim of duress? And thirdly, does the receipt of legal advice before paying make any difference? After all, the legal advice told Edmund, quite correctly, that he’d have no prospect of getting a court order compelling Wecanvas to perform at the original price in time for the wedding, so if anything it reinforced the subjective and objective causation between (implicit) threat and payment.