ABSTRACT
Duress is illegitimate pressure exerted by a dominant party to coerce a weaker or subservient party to consent to a contract against that party’s will. In other words, the weaker party does not have real freedom to choose whether or not to enter into the contract. Illegitimate pressure must be distinguished from commercial pressure. In Smith v William Charlick Ltd (1924) (HC), the plaintiff (Charlick) purchased wheat from the defendant (Smith/Wheat Harvest Board). Following delivery and payment, the defendant demanded additional payment, although not legally entitled. The defendant intimated that if the further payment was not made, future wheat sales were unlikely. The plaintiff paid under protest, because the defendant was the sole wheat supplier in South Australia. In subsequent litigation, the plaintiff alleged duress. The court disagreed, finding that the defendant’s actions amounted to commercial pressure, not duress. The
You should be familiar with the following areas:
• the requirements of duress • the effect of undue influence • equitable relief for unfair contracts
court stated that, although the payment was made ‘unwillingly ... it was, nevertheless, paid voluntarily, in the legal sense ... and without any unlawful compulsion, extortion, undue influence, or the abuse of any duty’ (cf economic duress, discussed below, p 109).
