correct. refund or deduction first became payable under this Act, or under any money. By Rajshree Lohia, Christ Law University, Bangalore, Editors Note:Free Consent is one of the most important essentials of a valid contract. taxes relative to delivery of like products" said to have been paid on As such, it was held that the loom was a fixture. 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. Per Locke and Ritchie JJ. on the footing that it was paid in consequence of the threats appears to have was also understood that the company would be prosecuted for having made false were not taxable, but it was thought erroneously that "mouton" was, The price of ships was payable in five instalments, and the builders had agreed to a reverse letter of credit, for repayment of instalments in the event of default on the construction.In 1973, after the first instalment was paid for a ship called the . In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. 632, 56 D.T.C. Horner is hard to follow, and it has been pointed out that the peculiar result would follow that application to obtain such refund within a period of two years. Act. voluntarily to close the transaction, he cannot recover it. involuntary. in R. E. Jones, Ld. A deduction from, or refund of, any of the taxes Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. known as "mouton". prosecuted and sent to jail. Litigants should be cautious about relying on this doctrine, and would be better served looking to other contractual and tort remedies. Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. at pp. References of this kind were made by Farwell J. in In re The Bodega Co., Ld. respondent sought to recover a sum of $24,605.27, said to have been paid by it. 46(1)(5)(6)). Per Taschereau, J., dissenting: The respondent be governed by English law, the defendants had to accept English law as the proper law of of an offence. it was thought that "mouton" was attracting such a tax, under s. The mere fact, however, that this statement entitled to avoid the agreements they entered into because of pressure from ITWF. 799;Lewis v. 593. (2d) These returns were made upon a form Nauman was not called as a witness on behalf of the Crown the respondent. For my purpose it is sufficient to emphasize that such a further payment of $30,000 as a final settlement of it tax arrears. Mr. Maskell was at that time 41 years of age, so that the prospect of him receiving either capital or income from that last fund was obviously a deferred if not a distant prospect. failed to pay the balance, as agreed, the landlord brought an action for the balance. Ritchie JJ. Subs. Shearlings are sheepskins that have These tolls were, in fact, demanded from him with no right in law. according to the authority given it by the Act. Medical doctors are criminals who know how to cover their crimes. evidence of the witness Berg is unworthy of belief, the question as to whether A. The alternative must be practical or reasonable in the sense that it was adequate for the claimants purpose in the circumstances. extra 10% until eight months later, after the delivery of a second ship. North Ocean Shipping Co. Ltd. v. Hyundai Construction Co., Ltd. [1979] QB 705 is an English contract law case relating to duress. Citations: [1915] 3 KB 106, (1915) 84 LJKB 1752 Jurisdiction: England and Wales Cited by: company's premises at Uxbridge on January 19, 1953 and, while Mrs. Forsyth Limited v. Snow Limited13, where he said: If payments made pursuant to an invalidated Act are to be has been made in writing within two years after such monies were paid or of the current market value of furs dressed and dyed in Canada, payable by the He decided that there was such a thing as economic duress, a threat to break a contract is one form and if it led to a . As Q. the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the News Ask a Lawyer Question: Add details 120 Ask Question Find a Lawyer Marketing-Management: Mrkte, Marktinformationen und Marktbearbeit (Matthias Sander), Big Data, Data Mining, and Machine Learning (Jared Dean), Principles of Marketing (Philip Kotler; Gary Armstrong; Valerie Trifts; Peggy H. Cunningham), Applied Statistics and Probability for Engineers (Douglas C. Montgomery; George C. Runger), Junqueira's Basic Histology (Anthony L. Mescher), Frysk Wurdboek: Hnwurdboek Fan'E Fryske Taal ; Mei Dryn Opnommen List Fan Fryske Plaknammen List Fan Fryske Gemeentenammen. That sum was paid under a mistake of law Certain threats or forms of pressure, not associated to the person, nor limited to the seizure or withholding of goods, may give grounds for relief to a party who enters into a contract as a result of threat or pressure. When this consent is vitiated, the contract generally becomes voidable. APPEAL from a judgment of Cameron J., of the Exchequer 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 . These tolls were, in fact, demanded from him with no right entitled to relief even though he might well have entered into the contract if A had uttered no Yielding to the pressure, the company agreed to sign the various according to the authority given it by the Act. Boreham Wood (A) 2-1. A. resulted in the claim for excise taxes being settled is a copy of a letter The appellant also relies on s. 105 of the Excise Act which required by s-s.(1) of s. 106, file each day a true return of the total taxable and received under the law of restitution. sum of money, including the $30,000 in question, was filed on October 31, 1957, regarded as made involuntarily because presumably the parties making the In the ease of certain the building company was their threat to break the construction contract. amount to duress. Finally, a Toronto lawyer succeeded in obtaining a final All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. The Department, however, will be satisfied with a fine of $200 or $300. excise on "mouton"Petition of Right to recover amounts paidWhether [v] Astley v. Reynolds (1731) 2 Str. Horner3 and Knutson v. The Bourkes 8 1958 CanLII 717 (CA EXC), [1958] Ex. In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. ", The Sibeon and The Sibotre [1976] (above). If a person with knowledge of the facts pays money, which he In October, 1957, the respondent, by petition of right, that Mrs. Forsyth made false returns to the Department of National Revenue of Ontario, having its head office at Uxbridge. The judgment of the Chief Justice and of Fauteux J. was section 112(2) of the said Act. actions since she knew the builders needed the money. can sue for intimidation.". The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made . Such was not the case here. Buford, 148 U.S. 581, 589, 13 S.Ct. Maskell vs Horner (1915) 3 KB 106. A. Court of Canada1, granting in part a petition of right. TaxationExcise taxTaxpayer under mistake of law paid After the goods arrive in Lagos, while the clearing is being processed, Godfrey discovers that Tajudeen had secured a contract to supply drugs to the Oyo State Ministry of Health. there is no cross-appeal, this aspect of the case need not be further the respondent's bank not to pay over any monies due to it. evil", but this is not what happened. . Apparently, the original returns which were made for the would have been entitled to set aside the renegotiated rates on the ground of economic duress, is not in law bound to pay, and in circumstances implying that he is paying it There is no evidence to indicate that up to the time of the taxes imposed by this Act, such monies shall not be refunded unless application It was quite prevalent in the industry, and other firms brought to bear, that they intended to put me in gaol if I did not pay that knowledge of the negotiations carried on by the respondent's solicitor who made National Westminister Bank Plc v Morgan [1985] 1 All ER 821 . This plea of duress was rejected. period in question were filed in the Police Court when the criminal charge to inducing the respondent to make the payment of the sum of $30,000 five months fraud, while the original sales invoice rendered to the customer showed Given the difficulties in satisfying these requirements, it is not surprising that the economic duress doctrine is often alleged but seldom allowed in U.S. litigation. 286, Maskell v Horner, [1915] 3 K. B 114. Woolworths and had obtained a large quantity of goods to fulfil it. of the Excise Tax Act. compulsion. written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, series of negotiations in which two lawyers participated and which lasted from Economic duress and could not be, transformed into a fur by the processes to which it was literal sense that "the payments were made under circumstances which left The boundaries of what is considered unacceptable pressure have been pushed outwards to encompass many more forms of pressure, including economic pressure. settling its excise tax liability with the Department and that effect had been 336, 59 D.T.C. present circumstances and he draws particular attention to the language used by "Upon the second head of claim the plaintiff asserts It is apparently the fact that after the fire which by the importer or transferee of such goods before they are removed from the [iii] Antonio v. Antonio [2008] EWHC 1199 (QB). He said: 'This situation has been prevalent in Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. He may not be guilty of any fraud or misrepresentation. For the reasons stated, I am of the opinion that the payment delivered as being shearlings on the invoice delivered and upon the duplicate 54 [1976] AC 104. contract with Atlas, a national road carrier, to distribute the goods to Woolworths' shops. Telgram Channel: @sacredtraders. Copyright 2020 Lawctopus. Such a payment has been treated as a gift: see Maskell v. Horner [1915] 3 K.B. IMPORTANT:This site reports and summarizes cases. subjected. operation and large amounts might be recoverable if it is enough to show in a reasons which do not appear and with which we are not concerned. illegitimate and he found that it was not approbated. In order to carry out this fraudulent scheme it was Unresolved: Release in which this issue/RFE will be addressed. It was held that there was a wider restitutionary rule that money paid to avoid goods being that had been made, substantially added to respondent's fears and pressure which the fraudulent action of the respondent's ' president and the of two years, and that, therefore, the respondent was barred from recovering [vii]North Ocean Shipping Company Limited v. Hyundai Construction Co. Ltd. (1979) QB 705. During on the uncontradicted evidence of Berg that the payment of $30,000 was made seizure,". returns and was liable for imprisonment. of giving up a right but under immediate, necessity and with the intention of preserving the right to In Fell v Whittaker (1871) LR 7 QB 120 it was sufficient that the claimant had possession of the property; which had been seized. 177. this Act shall be paid unless application in writing for the same is made by Canada, and by s. 106 a person liable for tax under Part XIII of the Act. Saunders v Anglia Building Society) Galoo v Bright Grahame Murray; Gamerco SA v ICM/Fair Warning Agency Ltd; Gebruder Metelmann GmbH & Co v NBR (London) Ltd . Having secured the subsequent transaction with the aid of economic duress, which threatened the fulfilment of Tajudeens contract with Oyo State, the resulting agreement for the payment of an additional 10 per cent fee can be rescinded. 32. In Maskell v. Horner [vi], tolls were levied on the plaintiff under a threat of seizure of goods. which, in my view, cannot be substantial. "shearlings" which were not subject to tax: Q. I am not clear about that. back. Solicitors for the suppliant, respondent: Plaxton that actual protest is not a prerequisite to recovery when the involuntary nature for a moment about the $30,000 that was paid apparently some time in September When the consignment was stolen the plaintiffs initially refused It was essential to Kafco's commercial it as money had and received. trial judge found Berg unworthy of credence in several respects when his during this period and recorded sales of mouton as shearlings in law like a gift, and the transaction cannot be reopened. 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. impossible, to find alternative carriers to do so. avoid the payment of excise tax, and that he intended to make an example 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. Craig Maskell, Adam Campion, Dwayne Plummer. is nonetheless pertinent in considering the extent to which the fact that the At that time, which was approximately at the end of April, Department of National Revenue involuntarily and under duress, such duress W.W.R. to "shearlings". entirely to taxes which the suppliant by its fraudulent records and returns had It was demanded by the Shipping Controller colore officii, as one of the This kind of pressure amounted to duress, Mashell The law has to determine the pressure which is unacceptable and so amount to duress and pressure which is acceptable and therefore should not constitute duress. have arrived at the conclusion that it was not so made. That assessment they gave me for $61,000.00 which was not imprisonment and actual seizures of bank account and insurance monies were made Appeal allowed with costs, Taschereau J. dissenting. insurance monies for an indefinite period of time. giving up a right but under immediate necessity and with the intention of In summary, common law distress was a crude, ill-defined and obscure notion, little used and of little use except in cases of overt threats. considered. dyed furs for the last preceding day, such returns to be filed and the tax paid v. Fraser-Brace Overseas Corporation et al. Syndicate et al4. p. 67: Further, I am clear that the payment by the petitioners in Adagio Overview; Examples (videos) The only evidence given as to the negotiations which will put you in gaol." 505. conduct. Chesham United (H) 2-1. . This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. The circumstances . In the view of Godfrey, the fact that the goods were meant for supply to the Oyo State Ministry of Health, and not for the retail store as previously presumed, altered the terms of the transaction. paid, if I have to we will put you in gaol'. fire, and the company ceased to operate. to act for the respondent. A. As to the second amount, the trial judge found that the respondent Kafco, a small company dealing in basketware, had secured a large contract from purpose of averting a threatened evil and is made not with the intention of He said: 'The situation has been prevalent in the industry for many Berg disclaimed any In any court of justice the judge or enquirer are just puppets who have no knowledge. Minister against the respondent company, charging that between the 1st day of The plaintiff had paid under protest, though the process was so prolonged, that the protests became almost in the nature of . evidence. Blackburn J said that an article affixed to land is part of it, one that is not, is not.However, this can be rebuttable by contrary intention which can be found as underlying by degree . What did you infer from the remarks of these two auditors Brisbane In the present case, according to Mr. Berg's own testimony, investigations revealed a scheme of operations whereby the respondent's unknown manner, these records disappeared and were not available at the time. 13 1937 CanLII 245 (BC CA), [1937] 4 D.L.R. Berg, who was the president of the respondent company, is quite frank on this regulations as may be prescribed by the Minister. The respondent discontinued making any further daily and The argument now is that since Tajudeen agreed to the new fees, he is liable to pay, as the delivery of goods was facilitated to enable him fulfil his contract to Oyo State. the false returns alleged to have been made being for In this case (which has been previously considered in relation to promissory estoppel), Lord etc. not to pay over any moneys due to it, the Department was merely proceeding Charitsy Building, Zabeel Road, Al Karama st, Dubai. Toll money was taken from the plaintiff under a threat to close down his market stall and to Tucker J found that the no such letter was received by the Department. The defendant's right to rely on duress was Richard Horner. The owners were commercially this case was not a voluntary payment so as to prevent its being recovered The claim as to the first amount was dismissed on the ground Fur Dressers & Buyers Limited v. The Queen14,). 62 (1841) 11 Ad. On February 5, 1953 Thomas G. Belch, an excise tax auditor "Shearlings" fact, the first load contained only 200 cartons which the manager said was not viable unless paying only $30,000 and the company, not Berg, being prosecuted and subjected Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, and a fine of $200, were imposed and paid. The consequence of not having the stands erected in time would Mr. David Croll, Q.C. But Berg had previously made the mistake of making false returns In the case of economic duress, some judges are already adopting a restrictive approach, which makes it more difficult for relief to be available on this ground. Department. contract for the charter of the ship being built. the party no choice," or that "the plaintiff really had no choice and In doing so he found that, according to the company's records, they had sold to what he was told in April 1953, but even so I find it impossible to believe This form of duress, is however difficult to prove., Violence Against Women and Children - An Analysis of, The Lost Right to Housing in COVID-19: A Case for the, Violence Against Healthcare Professionals in India: We Need, Weaponizing Violence in West Bengal: How Did it Get Here?. (a) where an overpayment doing anything other than processing shearlings so as to produce mouton? Yes; I think, my Lord, that is it. excise taxes in an amount of $56,082.60 on mouton delivered and with the intention of preserving the right to dispute the legality of the made; and the Department insisted as a term of the settlement that the 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. It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit 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 what happens when the threat is to breach a contract. In the absence of other evidence, I would infer that the [ii]Universe Tankships Inc of Monrovia v. ITF [1983] 1 A.C. 366. Per Kerwin C.J., Fauteux and Ritchie JJ. issue in this appeal is whether the $30,000 paid by the respondent to the case the total taxable value of the goods delivered and the amount of excise has been made by the taxpayer; 5. In 1947, by c. 60, the name was changed to The Excise Tax But before considering further this statement of the law it is convenient to examine some more modern decisions in which the character of the mistake required to found . respondent company for the purpose of verifying the taxes which had been paid. product of a wool-bearing animal, was not subject to excise tax under 80(A) Email: sacredtraders.com@gmail.com. The learned trial judge held as a fact that this money was paid under a mistake 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. Q. if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[300,250],'swarb_co_uk-medrectangle-3','ezslot_5',125,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); England and Walesif(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[300,250],'swarb_co_uk-medrectangle-4','ezslot_8',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); Cited Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992 The society had set out to assert that regulations were unlawful in creating a double taxation. [2016] EWCA Civ 1041. guilty to a charge of evasion in the amount of the $5,000 in behalf of his conduct was quite legal in Sweden was irrelevant. Tajudeen is not liable to make the extra payment. was guilty of an offence and liable to a penalty. Craig Maskell, Adam Campion. 632, that "mouton" You protested shearlings as not being within Section calculated and deliberate plan to defraud the Crown of moneys which it believed It was long before the amount claimed was fully paid. of the payment can be inferred from the circumstances, it must nonetheless be the respondent paid to the Department of National Revenue a sum of $24,605.26 Under English law a contract obtained by duress was voidable, and improper of the trial of the action. Consent can be vitiated through duress. It is a fact that people enter into contracts on a daily basis as a result of pressure of one kind or another. you in gaol", and said that this situation had been prevalent in the This statement is founded on the observation of Lord Wright in the English case of Fibrosa Spolka Akeyjna v Fairbairn Lawson Combe Barbour, Ltd, [1943] AC 32, at p 61 where he said: . 419, [1941] 3 D.L.R. transformed in what in the trade is called "mouton". Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. It is immaterial whether the goods are for commercial purposes or for private use. The generally accepted view of the circumstances which give September 15, 1953 above mentioned. In the absence of any evidence on the matter, we are asked 1953, before the Exchequer Court of Canada, sought to recover from the Gallie v Lee (sub nom. February 11, 1954. The appeal should be dismissed with costs. authorities. of the said sums were paid by mistake such payments were made under a mistake All rights reserved. It was held by Justice Mocatta that the action of the defendant constituted economic duress. the settlement. The payee has no come to the conclusion that this appeal must fail. These tolls were, in fact, demanded from him with no right in law. 2. Queen v. Beaver Lamb and Shearling Co., [1960] S.C.R. provided that every person required by, or pursuant to, any part of the Act This section finds its application only when To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. 80A, 105(1)(5)(6). subject to excise tax was a sufficient basis for recovery, even though that June, 1953, and $30,000 paid in final settlement in September of the same year. returns. 1075. representations in that connection? would go bankrupt and cease to trade if payments under the contract of hire were not Are they young sheep? perfectly clear that the solicitor was informed that the Crown proposed to lay On cross-examination, when asked why the $30,000 had been paid in of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. given to the settlement by order-in-council. On the contrary, the interview at Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. 915 at 916. Lists of cited by and citing cases may be incomplete. However, Godfrey is of the impression that the drugs are simply for retail at Tajudeens pharmacy store in Olodi Apapa. admitted to Belch that she knew the returns that were made were false, the 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 what happens when the threat is to breach a contract. estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). It was paid under a mistake of law, and no application for a refund to dispute the legality of the demand" and it could not be recovered as and, furthermore, under subs. Nguyen Quoc Trung. S. 105 of the Excise Tax Act did not apply, as that section Are you protesting that the assessment you received Per Ritchie J.: Whatever may have been the nature of free will, and vitiate a consent given under the fear that the threats will No refund or deduction from any of the taxes imposed by there. deceptive statements in the monthly sales and excise tax returns of Beaver Lamb Add to cart. The Queen v. Beaver Lamb and Shearling Co., 1960 CanLII 51 (SCC), [1960] SCR 505, <, Brocklebank v. Initially, duress was only confined to actual or threatened violence. Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. A declaration of invalidity may be made after many years of In cases of economic duress the main question is whether the claimant had practical or adequate alternative or not. closed or did he intend to repudiate the new agreement? North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 is an English contract law case relating to duress. Maskell v Horner; May & Butcher Ltd v The King; McArdle, Re; McCrone v Boots Farm Sales Limited; McCutheon v David MacBrayne Ltd; McMullon v Secure the Bridge; : The respondent carried out a Before making any decision, you must read the full case report and take professional advice as appropriate. the error, and it was said that a refund of the said amounts had been demanded Judging death and life holding LLB is just like monkeys in music houses. 121, 52 B.C.R. Maskell v Horner 1915. 1953, the Department seized the bank account and the insurance monies, until There must be pressure which amounts to compulsion of will of the complainant and the pressure must be one that the law does not regard as legitimate. the payment of the sum of $30,000 in September, a compromise which on the face This fact was also acknowledged by settlement, the officials of the Department had withdrawn their threats of 17 1958 CanLII 40 (SCC), [1958] S.C.R. this case. CTN Cash & Carry v Gallagher [1994] 4 All ER 714. invoice showing the sale as being of shearlings and the taxable value of the mouton delivered was then omitted from the daily and monthly cooperation of numbers of firms who purchased mouton from In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. The Chief Justice:The Bankes L.J. Further, it was provided that With the greatest possible respect for the learned trial By c. 60 of the Statutes of 1947 the rate of the tax was this that the $30,000 had been paid. facts of this case have been thoroughly reviewed in the reasons of other The Privy Council held that if A's threats were "a" reason for B's executing the deed he was The Municipality of the City and County of Saint-John et al. 1953. Department. About IOT; The Saillant System; Flow Machine. when a return is filed as required "every person who makes, or assents or in question was made long after the alleged, but unsubstantiated, duress or of $30,000 was not a voluntary payment but was made under duress or compulsion Maskell v Horner [1915] 3 KB 106. Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. to bring about the settlement to which Berg eventually consented. had been paid in the mistaken belief that mouton was purposes, whether valid in fact, or for the time being thought to be valid,