Hard-nosed commercial negotiation that exploits monopoly advantage not duress
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Duress is a common law basis on which to rescind a contract. The essential elements are:
- there must be a threat or pressure exerted by D that is illegitimate (but not necessarily unlawful);
- that illegitimate threat or pressure must cause C to enter into the contract; and,
- for economic, or lawful act, duress, C must have had no reasonable alternative to giving into the threat or pressure.
The majority of the UK Supreme Court noted that, to date, there are two circumstances where lawful act duress has been found to exist:
- where D uses knowledge of C’s criminal activity (or that of C’s associates) and the threat of reporting it to obtain a personal benefit; or,
- where, D being exposed to a civil claim (eg breach of contract) by C, D illegitimately manoeuvres C into a position of vulnerability so that C waives its claim.
The majority noted that while the boundaries of lawful act duress are not fixed, the courts should approach any extension with caution, particularly in context of contractual negotiations between commercial entities (while at the same time noting that the equitable doctrines of undue influence and unconscionable bargains already exist and, moreover, there is no overriding duty of good faith in contracting nor a doctrine of imbalance of bargaining power.
In the view of the majority, without more, a bad faith assertion of a pre-existing legal entitlement by D which C believes or knows to be incorrect did not amount to lawful act duress. Examples of what could be that "more" included breach of duty, a misleading act or something that is “unconscionable”. Lord Burrows disagreed on this point.