Contracts Notes

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DURESS 1. Generally If one party pressures the contractual consent of another by duress the contract is voidable by that other party (See Also s 52A TPA and s 39 FTA). The common law has long recognised that duress, in the form of coercion of the plaintiff’s will through illegitimate pressure or threats to the plaintiff’s interests, render a contract voidable (Barton v Armstrong). Traditionally, the common law concept of duress was limited to actual or threatened violence to the person of the contracting party or their family or near relatives constitutes duress (Seear v Cohen; Barton v Armstrong). It appears that today, the emphasis appears to have shifted away from the notion of coercion of the will of the plaintiff to the…show more content…
For the purposes of economic duress, ‘unconscionable conduct’ refers to the effect of the pressure, upon the quality of the consent of the pressured party, rather than the quality of the conduct of the party against which relief is sought (Westpac Banking Corporation v Cockerill). Economic duress may include a threat to break a contract unless it is renegotiated without any legal justification for doing so (North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The Atlantic Baron)). Contract Modification Cases: Cases involving contract modification may be difficult to resolve in practice. It has been suggested that a threat to breach a contract unless it is modified may be distinguished from a warning, request or offer. • A threat is a proposal to bring about an unwelcome event unless the recipient of the proposal does something (Atlas Express Ltd v Kafco Ltd). • A warning is a prediction that an unwelcome event will happen or that it will happen if circumstances arise – this is different to a threat, as the speaker has no control over the unwelcome consequence (Williams v Roffey Brothers and Nicholls). o For example, subcontractors whose costs rise dramatically midway through the contract sometimes advise the head contractor that unless they are paid more, they will be forced to breach the contract. If as a result of higher costs
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