IMPORTANT NOTE:
NB: THESE NOTES ARE SIMPLY MY PERSONAL RECORD OF THE ARTICELS MENTIONED. THEY ARE NOT INTEDED TO BE ANYTHING MORE THAN SOMETHING TO JOG MY MEMORY. THEREFORE I APOLOGISE FOR THE BLATANT PLAGIARISM BELOW, AND WARN ANYONE WHO WANTS TO USE THESE NOTES THAT I CAN'T GUARANTEE THEIR CORRECTNESS OR COMPLETENESS.
IF YOU WANT TO KNOW WHAT THE ARTICLE REALLY SAID GO AND READ IT YOURSELF! THESE NOTES ARE ONLY ON THE WEB BECAUSE IT'S MORE CONVIENIENT FOR ME THAT WAY THAN CARRYING AROUND A HEAP OF PAPER.
IF YOU WANT TO CONTACT ME ABOUT THEM YOU CAN:
MARTYN HANMORE
LAW STUDENT AT BOND UNIVERSITY
E-MAIL MARTYN@WHO.NET
Melbourne University Law Review v14, no. 3 June 1984
ECONOMIC DURESS – LEGAL REGULATION OF COMMERCIAL PRESSURE, Andrew Stewart
The article gives a history of the concept of economic duress in Australia and England:
Development in England
1976 – abolished idea that there should be any distinction between actual payments and an agreement to pay.
1976 – The Siboen v The Sibotre
1978 – North Ocean Shipping Co Ltd v Hyundai Construction Co & Another, The Atlantic Baron
1979 – Pao On v Lau Yin
|–––– Thus the ground-work was laid ––––|
1982 – Universe Tankships Inc. v International Transport Workers Federation
Development in Australia
The innovation in Australian cases was largely the inspiration for the decisions in England. However, the Australian courts have not yet formed a conclusive body of law on the subject, leaving instead a fairly hap-hazard trail of cases since the 1920’s. The Courts have not established decisive elements of the law of economic duress, leaving commentators like Stewart to attempt infer a rationale from the decisions:
Elements of economic duress per Stewart
The American Courts appear to have adopted a policy of judicial discretion when deciding between what is legitimate and illegitimate pressure in commercial dealings. They have allowed greater freedom than that offered by drawing the distinction as that of the legality of the actions.
However the Australian Courts have not yet been faced with legal actions that they have considered require remedy, and thus have kept to the narrower test.
Necessary in establishing causation. SHIT THIS IS A GOOD SECTION – Keep looking back to the question then re-reading the article!
The Atlantic Baron – Court refused on the basis that there had been no actual coercion because they had affirmed the contract.
Sadler’s case – Court said that even though his conduct appeared to have affirmed the contract there was no evidence that he was not under a continuing threat the whole time.
Stewart argues that is should be considered as a factor because of it’s considerable evidentiary aid in establishing the previous element. However I would counter that by saying that therefore it should be an evidentiary considerations when deciding that element not a new element all together because if it was it could easily overshadow the other more important considerations.
For example it could be said that a small company who chooses to deal with Microsoft had no alternative because there was no-one else to deal with, therefore Microsoft could be seen to exercising pressure merely because of its size, the important fact that the small company wanted to deal with Microsoft is more easily overlooked. The fact that the alternative (dealing with Apple) was so unpleasant is evidence towards the plaintiff’s state of mind, but assessing it as a separate and distinct element that must be satisfied ignores that question of whether the large company deliberately caused the plaintiff to be in the position where they had to make the choice.