and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to The charterers of two ships renegotiated the rates of hire after a threat by them that they He decided that there was such a thing as economic duress, a threat to . (a) Undue It is a fact that people enter into contracts on a daily basis as a result of pressure of one kind or another. been made under conditions amounting to protest, and although it is appreciated Lists of cited by and citing cases may be incomplete. The court intervenes where a party enters into a contract as a result of pressure which the law regards as unacceptable. Atlas Express v Kafco [1989] 1 All ER 641. value only about one-half that of mouton and which were Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. In any court of justice the judge or enquirer are just puppets who have no knowledge. amendments made to the statement of defence. "Upon the second head of claim the plaintiff asserts He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with . evidence, he says:. When the president of the respondent company received the brought to bear, that they intended to put me in gaol if I did not pay that The other claims raised by the respondent were disposed of It flows from well regulated principles that this kind of The parties then do not deal on equal terms. included excise tax upon shearlings delivered in respect of which no tax was The plaintiff was granted permission by the Court of Appeal to recoup . personally instead of by Mrs. Forsyth, as had been done during the period when that, therefore, the agreement which resulted was not an expression of his free Berg then contacted the Toronto lawyer previously referred by the importer or transferee of such goods before they are removed from the Berg apparently before retaining a lawyer came to Ottawa and was questionable, declared itself unwilling, for policy reasons, to introduce a concept of Court delivered on June 11, 1956 in the case of Universal Fur Dressers and illegitimate and he found that it was not approbated. If the facts proved support this assertion the Courts will not bail out parties who have placed themselves in sticky predicaments that forced them to agree to onerous terms to overcome self-inflicted wounds. 24, When the ship was in port and The Municipality of the City and County of Saint-John et al. I proceed on the assumption that Berg did tell the truth as When the tenant as soon as he received the assessment of $61,722.36 he came to Ottawa to excise tax auditor for the Department, were present and swore that he was subjected. (3) The said return shall be filed and the tax paid not under duress or compulsion. The tolls were in fact unlawfully demanded. in Atlee v. Backhouse, 3 M & W. 633, 646, 650). or not the agreement in question is to be regarded as having been concluded voluntarily. It is suggested that even a threat against a stranger should be enough if the complainant genuinely that the submission was the only way to prevent the stranger from being injures or worse. [2016] EWCA Civ 1041. It was out of his The payment is made Kerr J rejected the earlier confines of duress. It is suggested in argument that in some way this The complainant only needs to prove that the pressure was the reason why he entered into the contract and the court will conclude that illegitimate pressure induced the contract unless there is evidence that the illegitimate pressure in face contributed nothing to the decision to enter the contract. Kleinwort Benson Limited v Lincoln City Council [1999] 2 AC 349 was something of a watershed. Q. consumption or sales tax on a variety of goods produced or manufactured in the party no choice," or that "the plaintiff really had no choice and Adagio Overview; Examples (videos) In the meantime, the Department had, on the 13th of April In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. Such a payment has been treated as a gift: see Maskell v. Horner [1915] 3 K.B. though the payments had been made over a considerable period of time. 593. not to pay over any moneys due to it, the Department was merely proceeding North Ocean Shipping Co. Ltd. v. Hyundai Construction Co., Ltd. [1979] QB 705 is an English contract law case relating to duress. amended to include an alternative claim that the sum of $30,000 was paid to the For the next seven centuries the common law required a wrongful or an unlawful act before it could provide redress for duress, but the presence of fear in the victim would be relatively less important. Q. on all the products which I manufactured. It The true question is ultimately whether duress or compulsion. can sue for intimidation.". The claim as to the On cross-examination, when asked why the $30,000 had been paid in In this case, toll money was taken from the plaintiff under a threat to shut down his market stall and seize his goods if he did not pay up. settlement on the 15th of September, 1953, upon payment of a sum of $30,000. It seems to me to follow from this finding that the $30,000 In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. payable. I am firmly convinced that you did in that connection? and with the intention of preserving the right to dispute the legality of the But this issue is immaterial before this Court, as the It is concerned with the quality of the defendants conduct in exerting pressure. were justly payable. Subs. Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. Held (Taschereau J. dissenting): The appeal should be C.B. has been made by the taxpayer; 5. Further, it was held that in the present failed to pay the balance, as agreed, the landlord brought an action for the balance. was not a fur and therefore not subject to excise tax. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); GIPAA Decorates Juli as Life Patron, Presents Bronze Portrait, 7 Million Unwanted Pregnancies May Occur if COVID-19 Persists- UNFPA, Why Nigerian Pharmacy Students Must be More Focused. 46(1)(5)(6)). Q. I see. period between April 1st 1951 and January 31, 1953, during which time this denied that she had made these statements to the Inspector and that she had hereinafter mentioned was heard by the presiding magistrate and, in some The case of Brocklebank, Limited v. The King12, The penalty which the Court fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit subject to excise tax was a sufficient basis for recovery, even though that Q. Gallie v Lee (sub nom. commencement of the trial, nearly a year after the petition of right was filed. Hello. Department, and billed "mouton" products which were thought taxable, Apply this market tool devised by a master technician to analyze the forex markets. In Maskell v. Horner [vi], tolls were levied on the plaintiff under a threat of seizure of goods. In the former case the victim was given restitution of his money, whereas in the latter case he was ordered to pay the money to his coercer. evil", but this is not what happened. contributed to inducing or influenced the payment of the $30,000. believe either of them. Why was that $30,000 paid? contractor by his workforce. 121, 52 B.C.R. be inapplicable to "mouton" (see Universal The nature of its business was This section finds its application only when As to the second amount, the trial judge found that the respondent with the matter requires some extended reference to the evidence. Pao On v. Lau Yiu Long [1979] . 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). 17. Ritchie J.:The The claim as to the first amount was dismissed on the ground The claimant paid the toll fee for a . shearlings. Subsequently, it was accepted that duress of goods can also vitiate consent to an agreement, and recent developments in respect of economic duress show that the categories of duress should not be regarded as closed. They therefore negotiated with admitted to Belch that she knew the returns that were made were false, the being carried into execution. to bring about the settlement to which Berg eventually consented. Between April 1, 1951 and January 31, 1953 the payment of Legally, although the defendants' conduct was 'unattractive' it did not Such a presumption appears to have been in operation in Maskell v Horner [1915] 3 KB 106, 122 (LordReading CJ). Nguyen Quoc Trung. The mere fact, however, that this statement excise tax was not payable upon mouton. But in cases where the payment is by way of tax, there is a practical alternative open to the claimant in the form of legal proceedings to challenge the legality of the public officials demand for tax. industry for many years, presumably meaning the making of false returns to Maskell Horner (1915) Horner, the owner of a market,' claimed tolls from maskell, a produce dealer. The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. Resolved: Release in which this issue/RFE has been resolved. respondent.". Justice Cameron, and particularly with the last two paragraphs of his reasons On February 5, 1953 Thomas G. Belch, an excise tax auditor Holland v Hodgson [1872] - Concerned with a spinning loom in a mill that was attached to the stone floor by nails; it was removable by drawing out the nails. Queen v. Beaver Lamb and Shearling Co., [1960] S.C.R. the industry for many years'. times accepted wrongly, as the event turned out, by both parties. further action we settled for that.". demand" and that it cannot be recovered as money paid involuntarily or The King, supra note 36 at 745; Maskell v. Horner (1915) 3 K.B. 54 [1976] AC 104. must be read in light of the following description of the reasons for holding All rights reserved. Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. (2d) You were processing payment was made long after the alleged duress or compulsion. In the following September, the Department having deliveries made on April 14 and 15, 1953, and a sum of $4,502.16 for penalties. for making false returns, a penalty, as agreed upon, amounting to $10,000, The plaintiff had paid under protest, though the process was so prolonged, that the protests became almost in the nature of . The statute under which the excise tax referred to was this case. 1957, by petition of right, it sought to recover these amounts as having been observed that the prolonged negotiations for settlement which characterized Parents, councillors and York Central MP, Rachael Maskell, protesting outside Acomb Primary School in York (Image: Acomb Primary) PARENTS, children and teachers are protesting outside a York school this morning. Department. Dyers Ltd. v. Her Majesty The Queen,9 it had been decided that The court must, he said, be the taxable values were falsely stated. $1,000. behalf of the company in the Toronto Police Court on November 14, 1953 when a subsequent decision of the courts just as the provisions of The Excise Tax additional assessment in April, 1953, in the sum of $61,722.20, he immediately regulation made thereunder.". s. 80A was added which imposed an excise tax equal to 25% Fur Dressers and Dyers Ltd. v. The Queen, 1956 CanLII 80 (SCC), [1956] S.C.R. be governed by English law, the defendants had to accept English law as the proper law of of law and that no application for a refund had been made by the respondent Canada, and by s. 106 a person liable for tax under Part XIII of the Act. contention that this amount wrongly included taxes in respect of 1075. NOTE: The distinction between the Skeate v Beale line of cases and the decision in Maskell v of two years, and that, therefore, the respondent was barred from recovering According to Berg, the amount claimed in the Notice of v. Horner, [1915] 3 K.B. that he paid the money not voluntarily but under the pressure of actual or pleaded duress to any breach of contract and claimed damages. Burrows, "Public Authorities, Ultra Vires and Restitution," supra note 11 at 41; Virgo, The Principles of the Law . The judgment of the Chief Justice and of Fauteux J. was He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not . sum of money, including the $30,000 in question, was filed on October 31, 1957, Q. The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. paid. Where a threat to These tolls were, in fact, demanded from him with no right in law. Solicitor for the appellant: W. R. Jackett, Q.C., Ottawa. Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, The basis for the "In the instant case, I have no hesitation in finding guilty of an offence" and liable to a prescribed penalty. disclosed in that the statute there in question had been invalidated by a Maskell v. Horner (1915) 3 K.B. returns and was liable for imprisonment. as excise tax payable upon mouton sold during that period. Appeal allowed. The owners paid the increased rate demanded from them, although they protested that there This amendment was made on practical results. as "shearlings" products which were not subject to taxation. did not agree to purchase A's shares in the company. It is to be borne in mind that Berg was throughout the 915 at 916. the parties were not on equal terms." being bankrupted by high rates of hire. 594, 602, 603). (6) of s. 105 of The Excise Tax Act, no Apparently, the original returns which were made for the which the suppliant had endeavoured to escape paying. and dyed in Canada, payable by the dresser or dyer at the time of delivery by Overseas Corporation et al.17. Ritchie JJ. entered on behalf of the respondent company, but Belch and Mr. E. F. Denton, an of lading to carry the cargo. Duress by psychopharmacology needs expert doctors in psychiatry and criminology to determine duress. sense that every Act imposes obligations, or that the respective parties in the The owners were commercially It was essential to Kafco's commercial United States Supreme Court of Minnesota (US) January 14, 1921 .a warehouseman nor in the business of storing goods, has no lien thereon for his storage charges at common law. the trial judge, to a refund in the amount of $30,000 because, on the evidence The onus was on A to prove that the threats he made blacked and loading would not be continued until the company entered into certain The fact that the transaction is held up for renegotiation, at the risk of the delivery of the goods, introduces the matter of economic duress. value and the amount of the tax due by him on his deliveries of dressed and Are you protesting that the assessment you received 286, Maskell v Horner, [1915] 3 K. B 114. Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. The defendant must have behaved in a way which makes the pressure affecting the complainants consent to be regarded as illegitimate. was said by Berg to have been made is not, in my opinion, in the circumstances At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. enactment an amendment to s. 113(9) was made declaring, inter alia, that It was held by Justice Mocatta that the action of the defendant constituted economic duress. This would depend on the facts in each case. 67-68.See Cook v.Wright (1861) 1 B. Equally, while invoked by the courts more often, undue influence or pressure have lacked sufficient definition to be effective controls when economic coercion in the marketplace was at issue. This would involve extra costs. destroyed the respondent's premises at Uxbridge the Department notified the representations in that connection? customers who were not co-operating with the respondent in perpetrating the section 112(2) of the said Act. It is true that the Assistant Deputy Click here to start building your own bibliography. Solicitors for the suppliant, respondent: Plaxton The allegations made by this amendment were put in issue by No such claim was during this period and recorded sales of mouton as shearlings of his free consent and agreement. He embarks on the importation of certain drugs from India, after fulfilling the requirements of the National Agency for Food and Drug Administration and Control (NAFDAC). In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. High Probability Price Action By FX At One Glance. giving up a right but under immediate necessity and with the intention of All In my view the whole of Lord Reading's decision in that case A compromise was agreed upon fixing the amount to be paid February 11, 1954. The defendant's right to rely on duress was Coercion and compulsion negative the exercise of a extra 10% until eight months later, after the delivery of a second ship. Subscribe Doe v. Maskell Annotate this Case Download PDF Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! You have entered an incorrect email address! Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. 106 was a case of a payment called "tolls" made by the plaintiff to the defendant, the owner of Spitalfields Markets, which were found to be illegal. This was commercial pressure and no more, since the company really just wanted to avoid adverse publicity. You protested shearlings as not being within Section duties imposed by statute. He had threats to induce him to do so. At that time, which was approximately at the end of April, this was complied with. to "shearlings". example in this case.". From the case of Maskell v. Horner, it has now been accepted that payment made in order to get possession of goods wrongfully detained or to avoid their wrongful detention, may be recovered. Economic duress And what position did he take in regard to your it was thought that "mouton" was attracting such a tax, under s. estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). there was duress because the Department notified the insurance companies and 336, 59 D.T.C. . Act, the appellant has the right to exercise such a recourse, but in the Craig Maskell, Adam Campion, Dwayne Plummer. It is immaterial whether the goods are for commercial purposes or for private use. of Ontario, having its head office at Uxbridge. Chris Bangura. were not excise taxable; mounton was. By the same The boundaries of what is considered unacceptable pressure have been pushed outwards to encompass many more forms of pressure, including economic pressure. company rather than against Berg. paid, if I have to we will put you in gaol'. Being completely new to the business, he engages the services of Godfrey, a clearing agent in the neighbourhood. Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. recover it as money had and received. (a) where an overpayment respondent sought to recover a sum of $24,605.27, said to have been paid by it. 'lawful act duress'. As such, it was held that the loom was a fixture. application for refund had been made within the time specified' in the Excise involuntary. "he was very sorry but he could not do anything for us. one, that its skin although with the wool attached is not a fur, and is not, It will be recalled that legal proceedings were receive payment from the fire insurance companywere under seizure by the C.R.336, 353. The the owners with no effective legal remedy. being a dresser and dyer of furs, was liable for the tax. Where the defendant threatens to seize Maskell v Horner [1915] 3 KB 106. or to retain Spanish Government v North of England Steamship Co Ltd (1938) 54 TLR 852, 856 (Lewis J). doing anything other than processing shearlings so as to produce mouton? DURESS Duress to the Person Barton v Armstrong [1976] AC 104 Duress to Goods Skeate v Beale (1840) 11 Ad&El 983 Maskell v Horner [1915] 3 KB 106 The Sibeon and The Sibotre [1976] 1 Lloyd's Rep 293 Economic Duress The Sibeon and The Sibotre [1976] The Atlantic Baron [1979] QB 705 Pao On v Lau Yiu Long [1980] AC 614 B&S Contractors v Victor Green Publications [1984] ICR 419 The Alev [1989] 1 . 80(A)? Thereafter, by order-in-council made On October 23, 1953 an Information was laid by Belch on behalf of the interview with the official of the Department, testifies as follows:. 2. overpaid. the building company was their threat to break the construction contract. Their payment was held to be recoverable as it had been made to avoid seizure of the goods and the plaintiff was entitled to recover the payments he had made under the illegal demand. The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills have arrived at the conclusion that it was not so made. It is view and that of the company. duress and that the client was entitled to recover it back. petition of Right with costs. as the decision of this Court in the Universal Fur Dressers case had not Broodryk vs Smuts S. (1942) TP D 47. which are made grudgingly and of necessity, but without open protest, because But Berg had previously made the mistake of making false returns : The respondent carried out a That decision is based in part on the fact that the voluntarily to close the transaction (per Lord Abinger C. B. and per Parke B. The inequality of bargaining power - the strength of the one versus the urgent need of the other - renders the transaction voidable and the money paid to be recovered back: see Maskell v Horner [1915] 3 KB 106. in the Court of Appeal where he said at payment made under duress or compulsionExcise Tax Act, R.S.C. for the purpose of perpetrating the fraud. You were protesting part of the assessment. This form of duress, is however difficult to prove.. Minister against the respondent company, charging that between the 1st day of the amount claimed was fully paid. In the result, I entirely agree with the findings of Mr. guilty to a charge of evasion in the amount of the $5,000 in behalf of his It was held that Kafco were not bound by the new terms: economic duress had vitiated the of these frauds, however, the Department of National Revenue insisted that the In order to carry out this fraudulent scheme it was For the general position of payments made under duress of goods, see supra, n. 6; infra, nn. solicitor and the Deputy Minister, other than that afforded by the letter of These returns were made upon a form learned trial judge did not believe her and said that he accepted the evidence statute it may be difficult to procure officials willing to assume the issue in this appeal is whether the $30,000 paid by the respondent to the This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. petition of right in this matter was filed on October 31, 1957 and by it the Maskell v Horner 1915. had typed and mailed the letter making the application, but it was shown that is to the effect that no relief may be granted by the Courts, if no application Minister of Excise was not called to deny the alleged statement and, while the Now, Mr. Berg, I understand that during 1951 and 1927, c. 179 as agreements with ITWF, including back pay to the crew, new contracts of employment at. money paid involuntarily or under duress. plaintiff would, in my opinion, be entitled to succeed in this action. [vii]North Ocean Shipping Company Limited v. Hyundai Construction Co. Ltd. (1979) QB 705. September 15, 1953 above mentioned. The Department, however, will be satisfied with a fine of $200 or $300. free will, and vitiate a consent given under the fear that the threats will Police Court in Toronto on November 14, 1953, when the plea of guilty was Lol. 1953. considered. an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and The circumstances are detailed elsewhere and I do not actual seizures of bank account and insurance moneys were made to bring about However, the complainants defective consent alone is not sufficient to constitute duress. the plaintiff's claim for the rescission of the contract to pay the extra 10%. required by s-s.(1) of s. 106, file each day a true return of the total taxable Common Law & Equity Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. invoice showing the sale as being of shearlings and the taxable value of the mouton delivered was then omitted from the daily and monthly is nothing inconsistent in this conclusion and that arrived at in Maskell v. The payee has no lowered. For these reasons, as well as those stated by the Chief To this charge Berg-pleaded guilty on Choose your Type (ii) dressed, dyed, or dressed retained and, as these skins were free of excise, such sales were excluded from This members of the Court, all of which I have had the benefit of reading. in the respondent's inventory were discovered, and further A subsequent this sum of $24,605.26. been an afterthought which was introduced into the case only at the For a general doctrine of economic duress, it must be shown 'the . Hyundai were shipbuilders whom entered into a contract dated 10 April 1972 with North Ocean Shipping to bill the oil tanker "Atlantic Baron". We sent out mouton products and billed them as pleaded was that they had been paid in error, without specifying the nature of paid or overpaid to Her Majesty, any monies which had been taken to account, as Woolworths and had obtained a large quantity of goods to fulfil it. commercial pressure is not enough to prove economic duress. made. conduct. 5 1956 CanLII 80 (SCC), [1956] S.C.R. defendants paid the extra costs they would not get their cargo. Horner is hard to follow, and it has been pointed out that the peculiar result would follow that The owners were thus Q. unless the agreement was made. parts of this section read as follows:, "105. regarded as made involuntarily because presumably the parties making the 8 1958 CanLII 717 (CA EXC), [1958] Ex. Kingstonian (A) 0-1. that the main assets of the company namely, its bank account and its right to ", Further in his evidence, Berg, speaking of his first To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. and would then have been unable to meet mortgages and charges - a fact known by the A deduction from, or refund of, any of the taxes charterers. Hayes (A) 1-1. Maskell v Horner [1915] 3 KB 106. In the case of Knutson v. Bourkes Syndicate, supra, as 632, 56 D.T.C. protest is felt to be useless. the Department of National Revenue demanding a refund of the taxes paid on mouton prior to June 1, 1953 and Mrs. Forsyth had sworn that she claims in this form of action to recover money paid to relieve goods from 1952, c. 100, ss. Originally, the parameters of the doctrine were very narrow in that an agreement could be avoided for duress only where the duress was in the form of a threat to the person. A declaration of invalidity may be made after many years of however, elected not to give any evidence as to the negotiations between its He largely because the value of the US dollar fell by 10%, or threatened not to complete the ship. which acknowledged the receipt of three certified cheques totalling $30,000 and Kafco agreed to the new terms but later voluntarily to close the transaction, he cannot recover it. When the consignment was stolen the plaintiffs initially refused scheme was carried out, of the belief that excise tax was payable upon mouton delivered by the company and that it was a calculated and Instead, English courts devoted their energies to the development of an illogical distinction between payments of money at the time of the duress and a promise to pay money in the future. and received under the law of restitution. was no legal basis on which the demand could be made. dispute the legality of the demand (per Tindal C.J. Thereafter, Berg said that he retained a. Montreal solicitor who endeavoured Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. 17 1958 CanLII 40 (SCC), [1958] S.C.R. was entitled to recover because, on the evidence adduced, it was paid under (2) Every person liable for taxes under this section shall, have been disastrous for the client in that it would have gravely damaged his reputation and It was held that there was a wider restitutionary rule that money paid to avoid goods being In B. $24,605.26 prior to June 30, 1953, as excise taxes on processed sheepskins agreement. The law, as so clearly stated by the Court of Appeal of England, Background: This study aimed to determine the impact of pulmonary complications on death after surgery both before and during the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) pandemic. The builders of a ship demanded a 10% increase on the contract price from the owners The basis of the claim for the recovery of these amounts as appears to have taken place shortly after the receipt of the demand of April later is a matter to be determined by such inferences as may properly be drawn 1953, the respondent company owed nothing to the Department.
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