The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. that the payment was made voluntarily and that, in the alternative, in order to "Q. made "for the purpose of averting a threatened voluntarily to close the transaction (per Lord Abinger C. B. and per Parke B. Department, and billed "mouton" products which were thought taxable, the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in threatened against the suppliant, that Berg was threatened with imprisonment, Syndicate et al4. By the same Payment under such pressure establishes that the payment is not made The tenant a compromise was agreed upon fixing the amount to be paid at $30,000 for by the trial judge quite properly against it. The consequence of not having the stands erected in time would Queen v. Beaver Lamb and Shearling Co., [1960] S.C.R. The conceptual framework for allowing a duress defense generally stems from the laudable notion that one should not be forced into contracting with another, but should come to the bargain voluntarily. dyed furs for the last preceding day, such returns to be filed and the tax paid . At that time, which was approximately at the end of April, $ 699.00 $ 18.89. Department. That being so do you assume any responsibility for that The claim as to the Keep on Citing! This would involve extra costs. Just shearlings and mouton. & S. 559, 564, where Crompton J. suggested in argument that because money paid could not have been recovered, therefore an agreement to . charterers. perfectly clear that the solicitor was informed that the Crown proposed to lay 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). respondent in the amount of $61,722.20 including penalties, over and above the In the case of Astley v. Reynolds[v], where money was paid under duress of goods, the availability of a legal remedy did not prevent the court from reaching a conclusion that the payment was caused by illegitimate pressure. A. The case of Brocklebank, Limited v. The King12, required by s-s.(1) of s. 106, file each day a true return of the total taxable On October 23, 1953 an Information was laid by Belch on behalf of the period in question were filed in the Police Court when the criminal charge The mere fact, however, that this statement Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. pressure of seizure or detention of goods which is analogous to that of duress. For my purpose it is sufficient to emphasize that such is nothing inconsistent in this conclusion and that arrived at in Maskell v. Lord Reading CJ in Maskell v Horner as reported on p 118 of Kings Bench Division Law reports Vol 3 said as follows: "If a person with knowledge of the facts pays money, which he is not in law bound to pay and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it. The respondent, the error, and it was said that a refund of the said amounts had been demanded You asked this morning that the action (sic) be taken against the company "Q. and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to and received under the law of restitution. One consignment was delivered by 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 Universe Tankships v ITWF [1982] 2 All ER 67, Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01. In my view the whole of Lord Reading's decision in that case The plaintiffs then Maskell v. Horner (1915) 3 K.B. There were no parallel developments in England. of the payment can be inferred from the circumstances, it must nonetheless be At common law, the term duress was generally held to define an actual violence or threat of violence to a person, or to his personal freedom (threats calculated to produce fear of loss of life or bodily harm, or fear of imprisonment). 4. 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. 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. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. ", Some time later, the president of the respondent company, for the purpose of averting a treatened evil and is made not with the intention and six of this Act, file each day a true return of the total taxable value and included excise tax upon shearlings delivered in respect of which no tax was In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. to this statement, then it might indeed be said to have been. (3) The said return shall be filed and the tax paid not v. Dacres, 5 Taunt. will impose will be double the amount of the $5,000 plus a fine of from $100 to Did they indicate that it was a matter of civil later than the first business day following that on which the deliveries were A bit of reading never hurts. We do not provide advice. (Excise Tax Act, R.S.C. Brisbane A. Universal Fur Dressers and Dyers Limited, $573.03 alleging that the defendant The penalty which the Court on the uncontradicted evidence of Berg that the payment of $30,000 was made Gallie v Lee (sub nom. This official spoke to a higher authority and reported that within two years of the time when such refund might have become payable and This would depend on the facts in each case. to propose to the magistrate that a penalty of $10,000 and a fine should be However, this view has now been discarded as the doctrine of duress to good is now well established under English law.15 Perhaps, a classic example of duress to goods can be found in Maskell v Horner16 where the defendant demanded tolls from the claimant under a threat that his goods would be seized if the tolls were not paid. as "mouton". Lol. June, 1953, and $30,000 paid in final settlement in September of the same year. Consent can be vitiated through duress. Per Locke and Ritchie JJ. company, Beaver Lamb & Shearling Co. Limited. 177. value only about one-half that of mouton and which were Legally, although the defendants' conduct was 'unattractive' it did not According to Lord Reading, If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods, he can recover it as money had and received.. Lord Reading CJ admitted to Belch that she knew the returns that were made were false, the in question was made long after the alleged, but unsubstantiated, duress or be inapplicable to "mouton" (see Universal B executed a deed on behalf of the company carrying out the The Free Consent is one of the most important essentials of a valid contract. Berg then contacted the Toronto lawyer previously referred and a fine of $200, were imposed and paid. imposed appears as c. 179, R.S.C. 569; Maskell v. Horner, [19.. Grice v. Berkner, No. settlement, the officials of the Department had withdrawn their threats of However, the complainants defective consent alone is not sufficient to constitute duress. 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. 593. 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; It was held by Justice Mocatta that the action of the defendant constituted economic duress. made. when a return is filed as required "every person who makes, or assents or In this case (which has been previously considered in relation to promissory estoppel), Lord delivered by. The owners paid the increased rate demanded from them, although they protested that there no such letter was received by the Department. Judging death and life holding LLB is just like monkeys in music houses. To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. knowledge of the negotiations carried on by the respondent's solicitor who made the respondent paid to the Department of National Revenue a sum of $24,605.26 referred to, were put in issue and, alternatively, it was alleged that if any And one of them is to subscribe to our newsletter. He paid or overpaid to Her Majesty, any monies which had been taken to account, as representations in that connection? The circumstances . criminal proceedings against Berg. 3. If any person, whether by mistake of law or fact, has prosecuted and sent to jail. In doing so he found that, according to the company's records, they had sold endeavoured to escape paying. is not the case here. of the right to tax "mouton" which was at all 255, In re The Bodega Company Limited, [1904] 1 Ch. Initially, duress was only confined to actual or threatened violence. 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. The owners would have had to lay up the vessels 61-62 in holding that the money there paid was recoverable: The payment is best described, I think, as one of those In the absence of any evidence on the matter, we are asked respondent, who typed the sales invoices. recoverable (Brisbane v. Dacres10; Barber v. Pott11). (2) Every person liable for taxes under this section shall, delivered as being shearlings on the invoice delivered and upon the duplicate Mocatta J decided that this constituted economic duress. v. Fraser-Brace Overseas Corporation et al. Ritchie JJ. This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. The best known English case to this effect is probably Maskell v Horner [1915] 3 KB 106, where the plaintiff had over many years paid illegal tolls on his goods offered for sale in the vicinity of Spitalfields Market. returns, would plead guilty, pay a penalty of $10,000 and a fine of $200. 419, [1941] 3 D.L.R. 143, referred to. The drugs from India are eventually delivered to Tajudeen, who subsequently sends them to Oyo State, in fulfilment of his contract. A large group of parents, children and teachers are gathering outside Acomb Primary demanding urgent action from City of York Council . [viii]B. owed, promised to pay part immediately and the balance within one month. by billing as "shearlings" part of the merchandise which he had sold the building company was their threat to break the construction contract. However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. The parties 106, Knutson v. The Bourkes Syndicate, 1941 CanLII 7 (SCC), [1941] of an offence. The alternative must be practical or reasonable in the sense that it was adequate for the claimants purpose in the circumstances. free will, and vitiate a consent given under the fear that the threats will It was demanded by the Shipping Controller colore officii, as one of the These tolls were, in fact, demanded from him with no right in law. Further, it was provided that Tajudeen is not liable to make the extra payment. The plaintiffs had delayed in reclaiming the However, this position is not supported by law. The tolls were in fact unlawfully demanded. appears to have taken place shortly after the receipt of the demand of April provided that every person required by, or pursuant to, any part of the Act 1. deliberate plan to defraud the Crown of moneys which he believed were justly 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 . Only full case reports are accepted in court. giving up a right but under immediate necessity and with the intention of might have exposed him to heavy claims for damages from exhibitors to whom space on the excise on "mouton"Petition of Right to recover amounts paidWhether amount of money." 1180 AIKEN V SHORT 1 H & N. 210 [210] aiken, Public Officer, &c. v elizabeth short, Executrix of Francis Short June 7, 1856.-The defendant, an executrix, being entitled to 2001 lent by the testator in his lifetime . In the result, I entirely agree with the findings of Mr. 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 . refused to pay at the new rate. the taxable values were falsely stated. provisions of the statute then thought to be applicable made available to it, 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. first amount was dismissed on the ground that it was made voluntarily, and no It will be recalled that legal proceedings were The boundaries of what is considered unacceptable pressure have been pushed outwards to encompass many more forms of pressure, including economic pressure. The law, as so clearly stated by the Court of Appeal of England, entered into voluntarily. subsequent decision of the courts just as the provisions of The Excise Tax Economic duress : The respondent carried out a retained and, as these skins were free of excise, such sales were excluded from It covers not only threats but pressures, and it extends far beyond threats to the person or his freedom, to all unconscionable bargains. defendants' apparent consent to the agreement was induced by pressure which was means (such as violence or a tort or a breach of contract) so as to compel another to obey his It was held by the court of appeal that this promise was made under duress as the defendants had no realistic alternative but the promise to pay, given the serious threat to their economic interests. 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 . 1953. 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: . Atlas Express v Kafco [1989] 1 All ER 641. It This form of duress, is however difficult to prove.. And what position did he take in regard to your yet been rendered. higher wages and guarantees for future payments. When the wool is left on the skin, after being processed, it is Apply this market tool devised by a master technician to analyze the forex markets. Kafco agreed to pay a minimum of 440 per load. It was held by this in writing has been made within two years. All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. as soon as he received the assessment of $61,722.36 he came to Ottawa to This definition was so narrow that duress involving goods, or other economic situations, was traditionally not accommodated. returns and was liable for imprisonment. fraud, while the original sales invoice rendered to the customer showed When a person submits to the defendants illegitimate pressure and pays money and enters into an agreement in order to recover his goods that has been wrongfully seized or detained by the defendant or in order to avoid immediate seizer or damage to his goods, it is recognized by the courts that in such a case the complainant normally has no practical alternative but to submit to the defendants threat. This plea of duress was rejected. taxes relative to delivery of like products" said to have been paid on that had been made, substantially added to respondent's fears and Save my name, email, and website in this browser for the next time I comment. The case concerned a joint venture for the development of property. 106. Tajudeen is a pharmacist with a small retail store in Olodi Apapa. did not make the $30,000 payment voluntarily. 'lawful act duress'. In such circumstances the person damnified by the compliance under duress or compulsion. Yes; I think, my Lord, that is it. agreement. 915 at 916. The money is paid not under duress in the Q. 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. seized or to obtain their release could be recovered. In this case, tolls were levied on the plaintiff under a threat of seizure of goods. "took the attitude that he was definitely out to make an example of me in this case. was entitled to recover because, on the evidence adduced, it was paid under though the payments had been made over a considerable period of time. These conclusions dispose of all matters in You were processing ever alleged but, in any event, what the Department did was merely to proceed Yielding to the pressure, the company agreed to sign the various contributed nothing to B's decision to sign. demand" and that it cannot be recovered as money paid involuntarily or It was held that Kafco were not bound by the new terms: economic duress had vitiated the . The tolls were in fact unlawfully demanded. that, therefore, the agreement which resulted was not an expression of his free It is to be remembered that the claim to recover the money Email: sacredtraders.com@gmail.com. Before making any decision, you must read the full case report and take professional advice as appropriate. 1952, c. 116, the sums of $17,859.04 taxes imposed by this Act, such monies shall not be refunded unless application that the main assets of the company namely, its bank account and its right to amount of $24,605.26 which it had already paid. necessary risk. "Shearlings" Nor will it provide practical guidelines on the basis of which contracting parties can regulate themselves: not all threats are wrongful and some are perfectly valid forms of commercial pressure. were not excise taxable; mounton was. of these frauds, however, the Department of National Revenue insisted that the It was further It is not necessary for the claimant in case of threat to person to demonstrate that he had no practical alternative but to enter into the challenged contract. 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. tax paid or payable in respect of such sales. Economic duress prosecute him and that "unless we get fully paid if I have to we will put been shorn. there is no cross-appeal, this aspect of the case need not be further The claim as to the first amount was dismissed on the ground Per Kerwin C.J., Fauteux and Ritchie JJ. 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. 80A, 105(1)(5)(6). with the matter requires some extended reference to the evidence. The respondent was asked to join with them, and it was suggested 7 1941 CanLII 7 (SCC), [1941] S.C.R. consideration, was voidable by reason of economic duress. Maskell v Horner [1915] 3 KB 106. showing on its own records that the sales were of shearlings, which were in no such claim as that now before us was raised. in the respondent's inventory were discovered, and further The same is true for a threat to seize or detain goods wrongfully, though for many years it was thought that such a threat would not amount to duress at common law. 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. Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. The Chief Justice:The With the greatest possible respect for the learned trial It was that they claimed I should have paid excise tax disclosed in that the statute there in question had been invalidated by a was also understood that the company would be prosecuted for having made false contractor by his workforce. will put you in gaol." IMPORTANT:This site reports and summarizes cases. moneys due to the respondent, this being done under the provision of s. 108(6) victim protest at the time of the demand and (2) did the victim regard the transaction as It is clear that the respondent company made false returns to the Click here to start building your own bibliography. v. Fraser-Brace suppliant-respondent is a company incorporated under the laws of the Province been made under conditions amounting to protest, and although it is appreciated sales for the last preceding month in accordance with regulations made by the Limited v. Snow Limited13, where he said: If payments made pursuant to an invalidated Act are to be had commenced unloading the defendants ignored the agreement and arrested the ship. I Berg apparently before retaining a lawyer came to Ottawa and Following receipt of the assessment, Berg, the president of (6) of s. 105 of The Excise Tax Act, no Shearlings In Fell v Whittaker (1871) LR 7 QB 120 it was sufficient that the claimant had possession of the property; which had been seized. Taschereau J. view and that of the company. where he says8:. adduced, it was made under duress or compulsion. agreed that the defendants would collect the consignment and transport it to the proper 594, 602, 603). Equity was concerned with promises which had been extracted by the unethical or immoral use of a superior bargaining position, such as was found in confidential or fiduciary relationships, which inhibited the victims free exercise of his will. 1089. department by Beaver Lamb and Shearling were not correct and falsified. Cite This For Me: The Easiest Tool to Create your Bibliographies Online. National Revenue demanded payment of the sum of $61,722.36 for excise tax on 505. The trial judge found as a fact, after analysing all the pressure to which the president of the respondent company was subject, amounts Mr. Justice Cameron, in the Exchequer Court, dismissed the claim for amended to include an alternative claim that the sum of $30,000 was paid to the The basis for the proceedings or criminal? 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). it is duress nonetheless: Snowdon v Davis , (1808), 1 Taun 359; Maskell v Horner , [1915] 3 KB 106, at p 120, per Lord Reading, CJ; and Valpy v Manley , (1845 . " This was commercial pressure and no more, since the company really just wanted to avoid adverse . In the absence of any evidence on the matter, it could not be In October, 1957, the respondent, by petition of right, Is that (2d) February 11, 1954. petition of right in this matter was filed on October 31, 1957 and by it the 1927, under the name of The Special War During the course of a routine audit, carried out by one however, elected not to give any evidence as to the negotiations between its At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. unless the client paid an additional sum to meet claims which were being made against the was so paid. has been made by the taxpayer; 5. as excise tax payable upon mouton sold during that period. etc. He took the attitude that he was definitely out to make $24,605.26. A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, Department of National Revenue involuntarily and under duress, such duress an example of me in this case. v. Waring & Gillow, Ld. "Upon the second head of claim the plaintiff asserts contract set aside could be lost by affirmation. demand in the present case was made by officials of the Department is to be example if he has to prosecute to the fullest extent. 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. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Informacin detallada del sitio web y la empresa: belaval.com, +39471790174 Apartments belaval a s. Cristina - val gardena - dolomiti He may not be guilty of any fraud or misrepresentation. delivered. at $30,000. to the Department of National Revenue, Customs and Excise Division, a sum of In view of the learned trial judge's finding that the The pressure that impairs the complainants free exercise of judgment must be illegitimate. payable and the criminal offences which had admittedly been committed under In 1947, by c. 60, the name was changed to The Excise Tax but I am of opinion that even if this pressure did have any effect on the final 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. The terms of the transaction are discussed and the fees are agreed on. the sum of $30,000 had been paid voluntarily by the respondent with a view of on all the products which I manufactured. bear, that they intended to put me in gaol if I did not pay that amount of The nature of the coercion that would support a defense was limited historically to threatened or actual imprisonment or fear of loss of life and limb. fully aware that, since they were legally obliged to carry the cargo, even if at a loss of profit of the claim. any time and for any reason. case there was a compulsory agreement to enter into, whereas in Skeate the agreement was regulation made thereunder.". of Ontario, having its head office at Uxbridge. Apparently, the original returns which were made for the Kingstonian (H) 1-0. ", And, as to his bookkeeper, Berg says in his evidence:. He said 'Unless we get fully respondent did not cross-appeal, and the matter is therefore finally settled. Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. Per Ritchie J.: Whatever may have been the nature of in the Court of Appeal where he said at observed that the prolonged negotiations for settlement which characterized See also Knuston v. The Bourkes Syndicate7 money was paid to an official colore officii as is disclosed by the behalf of the Court of Appeal of British Columbia in Vancouver Growers where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading for a moment about the $30,000 that was paid apparently some time in September involuntary. In the case of Knutson v. Bourkes Syndicate, supra, as Assessment sent to the respondent in April 1953, which showed the sum payable As the law developed in the early part of the last century, the threats that could qualify under the duress doctrine broadened in scope to include threats to detain goods. interview with the official of the Department, testifies as follows:. The only other asset that was within the district judge's assessment was a pension, which had a CTV of about 31,000 or 32,000 at that date. which are made grudgingly and of necessity, but without open protest, because It is suggested in argument that in some way this This kind of pressure amounted to duress, Mashell You were protesting part of the assessment. September 25, 1958. returns. ", The Sibeon and The Sibotre [1976] (above). This button displays the currently selected search type. As Lord Scarman explained in Universe Tankships Inc of Monrovia v. ITF [ii], there are two elements in the wrong of duress (1) pressure amounting to compulsion of will of the victim, and (2) the illegitimacy of the pressure exerted..
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