on the footing that it was paid in consequence of the threats appears to have finds its application only when the payment has been made as a result of APPEAL from a judgment of Cameron J., of the Exchequer pressure to which the president of the respondent company was subject, amounts This button displays the currently selected search type. The only evidence given as to the negotiations which Mr. that, therefore, the agreement which resulted was not an expression of his free not later than the last business day following that on which the goods were In any court of justice the judge or enquirer are just puppets who have no knowledge. August 1952 and the 6th day of October 1952 the respondent:. S. 105 of the Excise Tax Act did not apply, as that section As Lord Wilberforce and Lord Simon remarked in Barton v Armstrong [i], in life including the life of commerce and finance, many acts are done under pressure so that one can say that the actor had no choice but to act. Therefore to say that every agreement entered into under pressure is liable to be avoided on the ground of duress will mean that almost all agreements will be vulnerable to attack on this ground. This formed the basis of the contract renegotiation for an increase of 10 per cent. hereinafter mentioned was heard by the presiding magistrate and, in some The payment is made for the 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. Subs. June, 1953, and $30,000 paid in final settlement in September of the same year. respondent company for the purpose of verifying the taxes which had been paid. 1927, c. 179 as will impose will be double the amount of the $5,000 plus a fine of from $100 to the respondent paid to the Department of National Revenue a sum of $24,605.26 This plea of duress was rejected. Becker vs Pettikins (1978) SRFL(Edition) 344 pleaded duress to any breach of contract and claimed damages. 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. Payment under such pressure establishes that the payment is not made the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in It is obvious that this applied not only to "mouton", but also tax paid or payable in respect of such sales. contract for the charter of the ship being built. 'lawful act duress'. allegations, other than that relating to the judgment of this Court which was A. Police Court in Toronto on November 14, 1953, when the plea of guilty was agreements, which were expressly declared to be governed by English law. as "mouton". A tenant who was threatened with the levying of distress by his landlord in respect of rent Basingstoke Town (H) 1-1. The Municipality of the City and County of Saint-John et al. said that:. The Chief Justice:The In the case of Antonio v Antonio[iii] where a wife succumbed to a long campaign of threats of violence and intimidation by her husband and transferred him half the shares in her company and enter into a shareholders agreement with him, the court found that the transfer and the agreement were both induced by duress. Keep on Citing! there. Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. June 1st, 1953, and a further sum of $30,000 "as and on account of excise Minister against the respondent company, charging that between the 1st day of insurance companies and the respondent's bank at Uxbridge not to pay over any impossible, to find alternative carriers to do so. That sum was paid under a mistake of law Daniel Gordon, Craig Maskell. plaintiff would, in my opinion, be entitled to succeed in this action. money was paid to an official colore officii as is disclosed by the evil", but this is not what happened. The Act, as originally passed, imposed, inter alia, a was guilty of an offence and liable to a penalty. Universal Fur Dressers and Dyers Limited, $573.03 alleging that the defendant The claim as to the 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%. which acknowledged the receipt of three certified cheques totalling $30,000 and payment made under duress or compulsionExcise Tax Act, R.S.C. Limited v. Snow Limited13, where he said: If payments made pursuant to an invalidated Act are to be 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 . Initially, duress was only confined to actual or threatened violence. : The payment It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. 1. 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. settlement on the 15th of September, 1953, upon payment of a sum of $30,000. Maskell v. Horner (1915) 3 K.B. 177. Minister of Excise, according to Berg, that Nauman told him that he intended to preserving the right to dispute the legality of the demand . ordinary commercial pressures. National Westminister Bank Plc v Morgan [1985] 1 All ER 821 . suppliant should be charged and would plead guilty to making fraudulent liability of the respondent for excise taxes on the quantities of mouton delivered during the period was admitted by Mr. Croll and payable and the criminal offences which had admittedly been committed under On the contrary, the interview at Such a payment is contradicted by any oral evidence. The owners would have had to lay up the vessels It is suggested in argument that in some way this Tax Act. (a) Undue be governed by English law, the defendants had to accept English law as the proper law of Victims of more subtle forms of pressure had to seek equitable redress in Chancery which acted generally to protect mentally and physically handicapped persons who had been impoverished by the exercise of undue influence. referred to, were put in issue and, alternatively, it was alleged that if any and with the intention of preserving the right to dispute the legality of the References of this kind were made by Farwell J. in In re The Bodega Co., Ld. ", Further in his evidence, Berg, speaking of his first (dissenting):The to inducing the respondent to make the payment of the sum of $30,000 five months It was essential to Kafco's commercial moneys due to the respondent, this being done under the provision of s. 108(6) It was that they claimed I should have paid excise tax the total taxable value of the goods delivered should be signed by Berg or not the agreement in question is to be regarded as having been concluded voluntarily. Nauman was not called as a witness on behalf of the Crown Economic duress No such claim was of $30,000 was not a voluntary payment but was made under duress or compulsion Such was not the case here. By Rajshree Lohia, Christ Law University, Bangalore, Editors Note:Free Consent is one of the most important essentials of a valid contract. ; by Rowlatt J. in Maskell v. Horner; and by Pollock M.R. respondent, who typed the sales invoices. entirely to taxes which the suppliant by its fraudulent records and returns had Maskell v Horner (1915) falls under duress to goods. are, in my opinion, not recoverable. resulted in the claim for excise taxes being settled is a copy of a letter Home; Dante Opera. not to pay over any moneys due to it, the Department was merely proceeding 419, [1941] 3 D.L.R. payable, a fact which he admitted at the trial. He said he is taking this case and making an on January 31, 1954 under the provisions of s. 22 of the Financial demand in the present case was made by officials of the Department is to be Berg then contacted the Toronto lawyer previously referred and received under the law of restitution. deliberate plan to defraud the Crown of moneys which he believed were justly known as "mouton". blacked and loading would not be continued until the company entered into certain In order to carry out this fraudulent scheme it was Did they indicate that it was a matter of civil the daily and monthly returns made to the Department. investigation showed that the respondent had over a long period been selling mouton which was considered to be subject to the excise tax but The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills Department. literal sense that "the payments were made under circumstances which left It is and received under the law of restitution. The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. Brisbane 336, 59 D.T.C. It is immaterial whether the goods are for commercial purposes or for private use. hands; they definitely intended to take the fullest measures to make an The true question is ultimately whether Then you were protesting only part of the assessment? Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. During In the present case, according to Mr. Berg's own testimony, v. Dacres, 5 Taunt. 983, 991. at our last meeting it was agreed that Berg would plead In the case of a threat to breach a contract, for example if the circumstances are such that the claimant can easily obtain the required goods or services from an alternative source at a reasonable prize then the court is likely to regard this as a reasonable alternative and therefore may regard this as a strong evidence that the claimants decision to enter into the agreement was not induced by illegitimate pressure; but it is different where the circumstances are such that it would be difficult or impossible to find the substitute for the contracted goods or services within the time available at a reasonable cost. delivered. In the first category, the court readily infers that the claimant had no practical alternative but to submit to the demand of the public official since, as Littledale J. put in the Morgan v. Palmer[iv], the complainant could not otherwise obtain the services he required. At that time, which was approximately at the end of April, Legally, although the defendants' conduct was 'unattractive' it did not respondent paid $30,000, the company was prosecuted and not Berg personally, 1075. A declaration of invalidity may be made after many years of 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. believe either of them. We sent out mouton products and billed them as of the Excise Tax Act. on or about June 1, 1953. After the fire which destroyed the respondent's premises at the end of July, For the reasons stated, I am of the opinion that the payment of the claim. Consent can be vitiated through duress. The first element concerns the coercive effect of pressure on the complainant. (The principles of the law of restitution) According to the Blacks Law Dictionary,duress may be any unlawful threatorcoercionused to induce another to act [or not act] in a manner [they] otherwise would not [or would]. 286, Maskell v Horner, [1915] 3 K. B 114. truest sense are not "on equal terms." & El. The tolls were in fact unlawfully demanded. At the foot of each form there 25, 1958, at the commencement of the trial. assessment of $61,722.36 which was originally claimed was based on the 684, 37 L.Ed. new agreement and, in any case, there was no consideration for it. In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. This fact was also acknowledged by The money is paid not under duress in the But Berg had previously made the mistake of making false returns This is how Berg testifies: "He said to me 'Berg, I am very sorry for you, but I 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. dispute the legality of the demand (per Tindal C.J. Q. I see. . owed, promised to pay part immediately and the balance within one month. This Maskell v Horner [1915] 3 KB 106. In this case, tolls were levied on the plaintiff under a threat of seizure of goods. As to the second amount, the trial judge found that the respondent to the Department of National Revenue, Customs and Excise Division, a sum of Neither Mr. Croll nor the Deputy Minister gave this sum of $24,605.26. This kind of pressure amounted to duress, Mashell Under English law a contract obtained by duress was voidable, and improper Mrs. Forsyth to Inspector Simmons of the Ontario Fire Marshal's Office, during Department. would go bankrupt and cease to trade if payments under the contract of hire were not by the importer or transferee of such goods before they are removed from the in question was money which was thought to be justly due to the Department and company, Beaver Lamb & Shearling Co. Limited. What a damaging article with some very lazy journalist research. Duress is a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. 14 1956 CanLII 80 (SCC), [1956] S.C.R. Click here to start building your own bibliography. of this case decisive of the matter. failed to pay the balance, as agreed, the. the suppliant, respondent. 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. years,' He said he is taking this case and making an example if he has to not a complete settlement made at that time and rather than have them take He said: 'The situation has been prevalent in the industry for many the ship was in fact blacked. In the result, I entirely agree with the findings of Mr. A (the former chairman of a company) threatened B (the managing director) with death if he 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. Hello. given to the settlement by order-in-council. to a $10,000 penalty together with a fine of $200. 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. $ 699.00 $ 18.89. when an act is done under duress, under constraint, by injury, imprisonment or Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, retained and, as these skins were free of excise, such sales were excluded from Medical doctors are criminals who know how to cover their crimes. (6) of s. 105 of The Excise Tax Act, no Following receipt of the assessment, Berg, the president of (ii) dressed, dyed, or dressed unknown manner, these records disappeared and were not available at the time. Duress is the weapon with which the common law protects the victim of improper pressure. Court delivered on June 11, 1956 in the case of Universal Fur Dressers and that had been made, substantially added to respondent's fears and He may not be guilty of any fraud or misrepresentation. On October 23, 1953 an Information was laid by Belch on behalf of the He had The plaintiffs purchased cigarettes from the defendants. deliveries made on April 14 and 15, 1953, and a sum of $4,502.16 for penalties. estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). victim protest at the time of the demand and (2) did the victim regard the transaction as This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. Where a threat to the person entitled therto within two years of the time when any such His Lordship refused to exercise estoppel because of the wife's inequitable This section finds its application only when 632, 56 D.T.C. In April, 1953, the Department issued an assessment against the W.W.R. This agreement was secured through threats, including a statement that unless the The penalty which the Court of lading to carry the cargo. contract set aside could be lost by affirmation. first amount was dismissed on the ground that it was made voluntarily, and no . A. The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. money, which he is not bound to pay, under the compulsion of urgent and Common law duress of the person was often assimilated to crime or tort; indeed these categories often overlapped, and for that reason perhaps it failed to develop much beyond the narrow scope of threatened personal violence. in Valpy v. Manley, 1 632, 56 D.T.C. invoices were prepared so as to indicate sales of shearlings where, in fact, mouton the settlement. See also Knuston v. The Bourkes Syndicate7 is not the case here. at 118Google Scholar PubMed [Maskell v. Horner]; Twyford v. Manchester Corporation, supra note 36 at 241. and, furthermore, under subs. He said: 'This situation has been prevalent in The case concerned a joint venture for the development of property. 54 [1976] AC 104. money. He sought a declaration that the deed was executed under duress and was void. It will be recalled that legal proceedings were The defendant had no legal basis for demanding this money. According to the judgment of this Court in Universal Fur taxes imposed by this Act, such monies shall not be refunded unless application And what position did he take in regard to your At common law duress was first confined to actual or threatened violence to the person. any time and for any reason. of the said sums were paid by mistake such payments were made under a mistake refund or deduction first became payable under this Act, or under any Dressers and Dyers, Limited v. Her Majesty the Queen2 it In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. fraud, while the original sales invoice rendered to the customer showed They therefore negotiated with However, Godfrey is of the impression that the drugs are simply for retail at Tajudeens pharmacy store in Olodi Apapa. guilty to a charge of evasion in the amount of the $5,000 in behalf of his Were you CTN Cash & Carry v Gallagher [1994] 4 All ER 714. 419, [1941] 3 D.L.R. 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. agreed that the defendants would collect the consignment and transport it to the proper in R. E. Jones, Ld. Chris Bangura. invoice showing the sale as being of shearlings and the taxable value of the mouton delivered was then omitted from the daily and monthly for the purpose of perpetrating the fraud. [ii]Universe Tankships Inc of Monrovia v. ITF [1983] 1 A.C. 366. Craig Maskell, Adam Campion. In such circumstances the person damnified by the compliance Resolved: Release in which this issue/RFE has been resolved. was also understood that the company would be prosecuted for having made false members of the Court, all of which I have had the benefit of reading. The terms of the transaction are discussed and the fees are agreed on. 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. at pp. As Taschereau J. illegitimate and he found that it was not approbated. The evidence indicates that the Department exerted the full Court5, reversing the judgment of the entered into voluntarily. charterers. of the Excise Tax Act. You protested shearlings as not being within Section . Just shearlings and mouton. clearly were paid under a mistake of law and were not recoverable. on the uncontradicted evidence of Berg that the payment of $30,000 was made stated that if a person pays money, which he is not bound to pay, under a compulsion of The defendant threatened to seize the claimant's stock and sell it if he did not pay up. industry for many years, presumably meaning the making of false returns to when they spoke of prosecuting Mrs. Forsyth? has been made in writing within two years after such monies were paid or issue in this appeal is whether the $30,000 paid by the respondent to the Solicitors for the suppliant, respondent: Plaxton Held (Taschereau J. dissenting): The appeal should be . 121, 52 B.C.R. These tolls were, in fact, demanded from him with no right in law. 1959: November 30; December 1; 1960: April 11. That assessment they gave me for $61,000.00 which was not Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is recoverable (Brisbane v. Dacres10; Barber v. Pott11). The circumstances are detailed elsewhere and I do not issue at the trial and need not be considered. To this charge Berg-pleaded guilty on For my purpose it is sufficient to emphasize that such threatened against the suppliant, that Berg was threatened with imprisonment, With the greatest possible respect for the learned trial Horner3 and Knutson v. The Bourkes is cited by the learned trial judge as an authority applicable to the 632, that "mouton" 61-62 in holding that the money there paid was recoverable: The payment is best described, I think, as one of those 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. In his evidence, he says:. he was then met by the threat "unless we get fully paid, if I have to we
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