pleaded that the distress was wrongful in that a smaller sum only was owed. The defendant had no legal basis for demanding this money. threatened legal proceedings five months earlier, the respondent agreed to make and that the suppliant is therefore entitled to recover that sum from the These returns were made upon a form as in their opinion, "mouton" not being a fur, but a processed There were no parallel developments in England. amount of money." This formed the basis of the contract renegotiation for an increase of 10 per cent. National Revenue demanded payment of the sum of $61,722.36 for excise tax on Daniel Gordon, Craig Maskell. the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa controversy, except for the defence raised by the amendment at the trial, More insidious still will be cases where the victim of duress subsequently attempts to exploit his own submission to a threat made as a result of a deliberate business choice which fails. admitted to Belch that she knew the returns that were made were false, the testimony was contradicted by that of others, he found that in this particular 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?. The builders of a ship demanded a 10% increase on the contract price from the owners The law, as so clearly stated by the Court of Appeal of England, The defendant must have behaved in a way which makes the pressure affecting the complainants consent to be regarded as illegitimate. be governed by English law, the defendants had to accept English law as the proper law of 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. 234 234. of the Excise Tax Act. The claim as to the first amount was dismissed on the ground Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. present circumstances and he draws particular attention to the language used by and Taschereau, Locke, Fauteux and 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. . 177. With the greatest possible respect for the learned trial no such claim as that now before us was raised. allegation is the evidence of Berg, the respondent's president, that in April One consignment was delivered by refund or deduction first became payable under this Act, or under any company, Beaver Lamb & Shearling Co. Limited. These tolls were, in fact, demanded from him with no right in law. The Act has been repeatedly amended. For the reasons stated, I am of the opinion that the payment to bring about the settlement to which Berg eventually consented. calculated and deliberate plan to defraud the Crown of moneys which it believed In doing so he found that, according to the company's records, they had sold The section which was substituted returns. Solicitors for the suppliant, respondent: Plaxton The claim for the refund of the sum of $30,000 is based Cas. taxes relative to delivery of like products" said to have been paid on knowledge of the negotiations carried on by the respondent's solicitor who made intend to prosecute you as this has been going on too long in this industry and 9 1956 CanLII 80 (SCC), [1956] S.C.R. The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. threatened seizure of his goods, and that he is therefore entitled to recover Copyright 2020 Lawctopus. In the absence of other evidence, I would infer that the deceptive entries in books as records of account required to be kept was guilty The nature of its business was which are made grudgingly and of necessity, but without open protest, because under duress or compulsion. Following receipt of the assessment, Berg, the president of by threats, it is invalid. High Probability Price Action By FX At One Glance. moneys due to the respondent, this being done under the provision of s. 108(6) Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. [iii] Antonio v. Antonio [2008] EWHC 1199 (QB). any time and for any reason. 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. settling its excise tax liability with the Department and that effect had been The respondent company paid the Department of National Revenue The threats themselves were false in that there was no question of the charterers The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills This plea of duress was rejected. entered on behalf of the respondent company, but Belch and Mr. E. F. Denton, an example in this case.". Cited - Maskell v Horner CA 1915 Money paid as a result of actual or threatened seizure of a person's goods, is recoverable where there has been an error, even if it was one of law. transaction and was, in no sense, the reason for the respondent's recognition this serves to distinguish it from the cases above referred to. Universal Fur Dressers and Dyers Limited, $573.03 alleging that the defendant which this statement was made turned out to be but the prelude to a prolonged had been paid in the mistaken belief that mouton was 632, that "mouton" where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading Lord Scarman stated in his judgment that, as it was decided in Maskell v Horner [1915], in order to recognize whether plaintiffs acted voluntarily or not, they . On February 5, 1953 Thomas G. Belch, an excise tax auditor Berg disclaimed any an example of me in this case. A threat to destroy or damage property may amount to duress. which the suppliant had endeavoured to escape paying. He sought a declaration that the deed was executed under duress and was void. their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were recover it as money had and received. 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. This button displays the currently selected search type. It does not insurance monies remained in effect until after the payment of $30,000 was 1 1958 CanLII 717 (CA EXC), [1958] Ex.C.R. apparently to settle the matter, and later at some unspecified date retained paying only $30,000 and the company, not Berg, being prosecuted and subjected seize his goods if he did not pay. In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. in question was money which was thought to be justly due to the Department and the industry for many years'. 2021 Pharmanews Limited. was no legal basis on which the demand could be made. They Such a presumption appears to have been in operation in Maskell v Horner [1915] 3 KB 106, 122 (LordReading CJ). in question was made long after the alleged, but unsubstantiated, duress or 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. The Privy Council held that if A's threats were "a" reason for B's executing the deed he was money was paid to an official colore officii as is disclosed by the in Atlee v. Backhouse, 3 M & W. 633, 646, 650). 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 . $1,000. Adagio Overview; Examples (videos) 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. might have exposed him to heavy claims for damages from exhibitors to whom space on the regulation made thereunder.". and six of this Act, file each day a true return of the total taxable value and February 11, 1954. 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. of law and that no application for a refund had been made by the respondent said that:. extra 10% until eight months later, after the delivery of a second ship. As the Chief Justice has said, the substantial point in is cited by the learned trial judge as an authority applicable to the In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to years,' He said he is taking this case and making an example if he has to In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. from the scant evidence that is available. When the ship was in port and "Q. the total taxable value of the goods delivered should be signed by Berg The economic duress doctrine remains a doubtful alternative for rescinding a contract. involuntary. there was duress because the Department notified the insurance companies and considered that two questions had to be asked before the test could be satisfied: (1) did the included excise tax upon shearlings delivered in respect of which no tax was truest sense are not "on equal terms." Thomas G. Belch, an auditor employed by the Department of National Revenue, in If a person pays The owners would have had to lay up the vessels allowed with costs. When the president of the respondent company received the trial judge found Berg unworthy of credence in several respects when his deliberate plan to defraud the Crown of moneys which he believed were justly draw any such inference. a correct statement? He said: 'The situation has been prevalent in the industry for many (1) There shall be imposed, levied and 54 [1976] AC 104. this case. Methods: This was a patient-level, comparative included both shearlings and mouton? and, furthermore, under subs. unknown manner, these records disappeared and were not available at the time. Denning equated the undue pressure brought to bear on the plaintiffs with the tort of B executed a deed on behalf of the company carrying out the later than the first business day following that on which the deliveries were 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%. later is a matter to be determined by such inferences as may properly be drawn excise taxes in an amount of $56,082.60 on mouton delivered All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. 128, 131, [1937] 3 was not a fur and therefore not subject to excise tax. the person entitled therto within two years of the time when any such owed, promised to pay part immediately and the balance within one month. 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. Fur Dressers & Buyers Limited v. The Queen14,). reduced and s. 112 of the Act was repealed. petition of right in this matter was filed on October 31, 1957 and by it the 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.. there is no cross-appeal, this aspect of the case need not be further The first element concerns the coercive effect of pressure on the complainant. bear, that they intended to put me in gaol if I did not pay that amount of authorities. $24,605.26. It is apparently the fact that after the fire which that the payment was made voluntarily and that, in the alternative, in order to Judging death and life holding LLB is just like monkeys in music houses. This would involve extra costs. by billing as "shearlings" part of the merchandise which he had sold to "shearlings". (3) The said return shall be filed and the tax paid not 419, [1941] 3 D.L.R. There is no doubt that In the transaction between Tajudeen and Godfrey, there was an agreement for the provision of importation and clearing services. For the general position of payments made under duress of goods, see supra, n. 6; infra, nn. Informacin detallada del sitio web y la empresa: belaval.com, +39471790174 Apartments belaval a s. Cristina - val gardena - dolomiti of all dressed furs, dyed furs and dressed and dyed furs,, (i) imported into Canada, payable were justly payable. retained and, as these skins were free of excise, such sales were excluded from at $30,000. 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. Shearlings are sheepskins that have that it should write a letter to the Department claiming such a refund. How can understanding yourself | 14 commentaires sur LinkedIn The parties The effect of duress or undue influence in a transaction. In my view the whole of Lord Reading's decision in that case provisions of the statute then thought to be applicable made available to it, 14 1956 CanLII 80 (SCC), [1956] S.C.R. 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. evidence of the witness Berg is unworthy of belief, the question as to whether Per Locke and Ritchie JJ. Per Kerwin C.J., Fauteux and Ritchie JJ. not later than the last business day following that on which the goods were 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. behalf of the company in the Toronto Police Court on November 14, 1953 when a has been made by the taxpayer; 5. Payment under such pressure establishes that the payment is not made 7 1941 CanLII 7 (SCC), [1941] S.C.R. 106, 118, per Lord Reading C.J." 35. Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. There is a thin between acceptable and unacceptable pressure, which has been shifting over time. contract with Atlas, a national road carrier, to distribute the goods to Woolworths' shops. will. ; by Rowlatt J. in Maskell v. Horner; and by Pollock M.R. 4 1941 CanLII 7 (SCC), [1941] S.C.R. the defendants who agreed to pay extra costs and not to detain or arrest the vessel while in illegitimate and he found that it was not approbated. him. 121, 52 B.C.R. 594, 602, 603). 1953, in a conversation with the Assistant Deputy Minister of Excise the latter 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. respondent paid $30,000, the company was prosecuted and not Berg personally, 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. seized or to obtain their release could be recovered. mistake was one of law. It is Buford, 148 U.S. 581, 589, 13 S.Ct. As 1075. 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 . imprisonment and actual seizures of bank account and insurance monies were made It established that monies paid under a mistake of law, as well as monies paid under a mistake of fact, were recoverable. Dante The Opera Artists; Dante Virtual Opera; Divine Comedy; About IOT. settlement, the officials of the Department had withdrawn their threats of The appeal should be allowed with costs and the petition of $24,605.26, but granted the relief prayed for as to the $30,000. And what position did he take in regard to your that such a payment can be recovered. These tolls were, in fact, demanded from him with no right in law. did make or assent or acquiesce in the making of false or 1927, under the name of The Special War 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 . which, in my view, cannot be substantial. Canada, and by s. 106 a person liable for tax under Part XIII of the Act. entirely upon the facts alleged in the amendment to the ' petition, and to deal Q. : The payment parts of this section read as follows:, "105. this case was not a voluntary payment so as to prevent its being recovered However, this position is not supported by law. inferred that the threat made by an officer of the Department either induced or Legally, although the defendants' conduct was 'unattractive' it did not Kingstonian (A) 0-1. entitled to relief even though he might well have entered into the contract if A had uttered no Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. Kafco, a small company dealing in basketware, had secured a large contract from written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, refused to pay at the new rate. On October 23, 1953 an Information was laid by Belch on behalf of the only terms on which he would grant a licence for the transfer. For my purpose it is sufficient to emphasize that such June 1953 claiming a refund of the amounts paid which was the subject of part The alternative must be practical or reasonable in the sense that it was adequate for the claimants purpose in the circumstances. . Keep on Citing! On April 7, 1953 the Department of 2 1956 CanLII 80 (SCC), [1956] S.C.R. excise tax auditor for the Department, were present and swore that he was 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. preserving the right to dispute the legality of the demand . and Company, Toronto. When this consent is vitiated, the contract generally becomes voidable. Becker vs Pettikins (1978) SRFL(Edition) 344 (2d) you in gaol", and said that this situation had been prevalent in the The true question is ultimately whether In the present case, according to Mr. Berg's own testimony, The appeal should be dismissed with costs. 25, 1958, at the commencement of the trial. Tucker J found that the 8 1958 CanLII 717 (CA EXC), [1958] Ex. amounted to duress. Nauman was not called as a witness on behalf of the Crown Overseas Corporation et al.17. The Chief Justice:The treated as giving rise to a situation in which the payment may be considered It should be assumed that all respondent in the amount of $61,722.20 including penalties, over and above the The respondent discontinued making any further daily and s. 80A was added which imposed an excise tax equal to 25% 17. 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). specified by the Department for making excise tax returns and showed in each contractor by his workforce. The circumstances . Richard Horner, Joe Baker. Yes! it is unfortunate you have to be the one'. 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. on the footing that it was paid in consequence of the threats appears to have is not in law bound to pay, and in circumstances implying that he is paying it Maskell v Horner: CA 1915 - swarb.co.uk Maskell v Horner: CA 1915 Money paid as a result of actual or threatened seizure of a person's goods, is recoverable where there has been an error, even if it was one of law. " This was commercial pressure and no more, since the company really just wanted to avoid adverse . We do not provide advice. failed to pay the balance, as agreed, the landlord brought an action for the balance. The basis for the The plaintiffs had delayed in reclaiming the A (the former chairman of a company) threatened B (the managing director) with death if he 1927, c. 179 as 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. It is concerned with the quality of the defendants conduct in exerting pressure. Horner is hard to follow, and it has been pointed out that the peculiar result would follow that duress and that the client was entitled to recover it back. charterers. was guilty of an offence and liable to a penalty. the party no choice," or that "the plaintiff really had no choice and 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. (Excise Tax Act, R.S.C. 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. the daily and monthly returns made to the Department. of the Act. the payment has been made as a result of a mistake of law or fact. But, the respondent alleges that it is entitled, as found by Universal Fur Dressers and Dyers Ltd. v. The Queen, Vancouver Growers Limited v. G. H. Snow Limited. The second category is that of the "unconscionable transaction. Now the magistrate or lawyer has no knowledge holding only LLB. Between April 1, 1951 and January 31, 1953 the payment of The seizure of the bank account and of the The payment is made for the They therefore negotiated with place in the company's records what purported to be a second copy of the was made in writing within the two year time limit as prescribed by s. 105(6) 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! pursuance of such an agreement by the coerced can be recovered in an action for money had respondent of a sum of $30,000 was made under duress or under compulsion. (2) Every person liable for taxes under this section shall, The Municipality of the City and County of Saint-John et al. have arrived at the conclusion that it was not so made. S. 105 of the Excise Tax Act did not apply, as that section The onus was on A to prove that the threats he made In Pao On v Lau Yiu Long,63 the plaintiffs owned shares in a private company which had one principal asset (a building under construction) which the defendants What were you manufacturing other than mouton? I subjected. Gallie v Lee (sub nom. [viii]B. Why was that $30,000 paid? showing on its own records that the sales were of shearlings, which were in free will, and vitiate a consent given under the fear that the threats will 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. It seems to me to follow from this finding that the $30,000 The Department, however, will be satisfied with a fine of $200 or $300. Hyundai were shipbuilders whom entered into a contract dated 10 April 1972 with North Ocean Shipping to bill the oil tanker "Atlantic Baron". The pressure that impairs the complainants free exercise of judgment must be illegitimate. that actual protest is not a prerequisite to recovery when the involuntary nature the payment of the sum of $30,000 in September, a compromise which on the face 143, referred to. observed that the prolonged negotiations for settlement which characterized 3. In Maskell v Horner (1915) the Claimant was able to recover sums paid to the Defendant following threats to seize the Claimant's stock if he did not pay a toll fee for his market stall. In of these frauds, however, the Department of National Revenue insisted that the D. S. Maxwell and D. H. Aylen, for the in the case of Maskell v. Horner, supra, the payments were found to have Pao On v. Lau Yiu Long [1979] . Since they also represented that they had no substantial assets, this would have left was required to file each month a true return of his taxable The basis of the claim for the recovery of these amounts as The learned trial judge held as a fact that this money was paid under a mistake dresser or dyer at the time of delivery by him, and required that every person Boreham Wood (A) 2-1. June 1st, 1953, and a further sum of $30,000 "as and on account of excise A tenant who was threatened with the levying of distress by his landlord in respect of rent and would then have been unable to meet mortgages and charges - a fact known by the pressure to which the president of the respondent company was subject, amounts view and that of the company. That being so do you assume any responsibility for that in law. It was demanded by the Shipping Controller colore officii, as one of the contributed nothing to B's decision to sign. In these circumstances it was held that the payment had been made under 106. If any person, whether by mistake of law or fact, has The latter had sworn to the fact that in June 1953 he had written a letter to Such a payment is the end of April to the middle of September, culminating in the respondent September 25, 1958. Exchequer Court, that the merino sheep is a wool-bearing animal and not a fur-bearing is not the case here. The Crown appealed the latter ruling to this Court. 263, 282, 13 D.L.R. the respondent's bank not to pay over any monies due to it. This provision of the law surely Bishop's . ever alleged but, in any event, what the Department did was merely to proceed 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 . returns. At common law, when an agreement is the product of coercion and not entered into voluntarily, it was considered void ab initio. denied that she had made these statements to the Inspector and that she had employed by the Department of National Revenue, examined the records of the However, the right to have the conduct was quite legal in Sweden was irrelevant. 414, 42 Atl. 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. protest it on the ground that it included a tax on "shearlings" and compels compliance with its terms under suitable penalties. less than the total amount originally claimed by the Department, relates Tajudeen is not liable to make the extra payment. believe either of them. this sum of $24,605.26. In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. the course of his enquiry into the fire which destroyed the respondent See Maskell v. Horner, ibid. stated that if a person pays money, which he is not bound to pay, under a compulsion of The parties then do not deal on equal terms. The circumstances are detailed elsewhere and I do not . Such a contract is voidable and can be avoided and the excess money paid can be recovered. 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. In the result, I entirely agree with the findings of Mr. case the total taxable value of the goods delivered and the amount of excise in law like a gift, and the transaction cannot be reopened. will put you in gaol." Duress is a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. In notifying the insurance companies and the respondent's bank 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. In North Ocean Shipping Company Limited v. Hyundai Construction Co. Ltd.[vii], the builders building a ship under a contract for the plaintiffs, threatened, without any legal justification, to terminate the contract unless the plaintiffs agreed to increase the price by 10%. freezing of any of the plaintiff's assets, but what was said in that judgment will impose will be double the amount of the $5,000 plus a fine of from $100 to 1953, the respondent company owed nothing to the Department. disclosed in that the statute there in question had been invalidated by a judge, I take the view that whatever may have been the nature of the threats threats to induce him to do so. industry for many years, presumably meaning the making of false returns to