.In general, to prove duress, Kelsey-Hayes must show a combination of a wrongful act by one party and the lack of reasonable alternative sources. For modification, it is important to note that a threat to breach-that is a threat not to perform where one does not believe that one has a legal justification for non-performance an count as a wrongful act. Therefore, modification coerced through threats of non-performance may turn out to be unenforceable, if the other elements of duress are proved and questions of good faith also point to non-enforcement. Under UCC law, modification is policed, not through the consideration doctrine but through the doctrines of duress and good faith. Although both of these doctrines are discussed in greater details, …show more content…
If Kelsey-Hayes’ manifestation of assent is induced by an improper threat by Galtaco Redlaw, then, latter’s threat leaves plaintiff no reasonable alternative and Kelsey-Hayes displays some protest against the modification to put the seller on notice that the modification was not freely entered into, then the contract is voidable. A rule of consideration doctrine declares that a party does not suffer a legal detriment by promising to do what he is already bound to do under an existing contract. It follows from this rule that the modification of Kesley-Hayes’s contractual performance is not binding unless it is supported by new consideration given by the Galtaco. This is for to invalidate a one-sided contractual modification extracted by a party who threatens not to perform unless his compensation increased. The consideration doctrine is a clumsy tool for policing coerced modifications. It does not allow for easy discrimination between legitimate and improper modifications, and it can be circumvented if the Galtaco demanding the modification undertakes some new detriment of relatively small value in relation to the gain to be received, or if the both parties go through the ritual of terminating the original contract and executing a new one. It is more efficient to focus directly on the problem of coerced modification by evaluating it under the rules of
Jones was party to the contract and mortgage together with Mrs Jones as surety for her husband, even though Mrs Jones was the actual owner of the property. This produced a legal consequence as it affected the appellants with a conduct on the part of the husband in relation to his wife which raised equities in her favour against the indication of a mortgage. The husband exercised undue influence on Mrs Jones to procure her signature to the mortgage which consisted of no consideration. The plaintiff brought proceedings against the defendant upon a contract to pay interest and principal contained in the mortgage over the property at Walkerville owned by Mrs Jones. It was understood that Mrs Jones executed the mortgage without understanding the effect of the contract and presumed various false misrepresentations. She argued that the mortgage which she s...
On December 15, 2005, Minnie Smith was found dead in the home she shared with her husband, Marvin Smith. Smith was charged with first-degree murder for the death of his wife. At the end of the trial, the prosecution asked for and received an aiding-and-abetting instruction, which would allow the jury to convict Smith even if they found that he had not delivered the fatal blow. The jury convicted Smith but did not specify which theory of guilt they adopted. The California Court of Appeal affirmed the conviction and rejected Smith’s argument that he had not been given adequate notice of the possibility of the aiding-and-abetting instruction. The California Supreme Court denied Smith’s petition for review.
First let us define negligence. “Negligence occurs when someone suffers injury because of another’s failure to live up to a required duty of care. The risk must be foreseeable, it must be such that a reasonable person performing the same activity would anticipate the risk (Miller, 2013).” For Myra’s claim of negligence to be proved her team must prove duty, breach, causation, and damages. Our defense will be based on Myra’s assumption of risk as a judge, contributory negligence, and comparative negligence.
This means that damages are unlikely to be awarded, and instead the claimant will be entitled to a remedy such as recission, the setting aside of the contract. This limit on outcome can be seen as slightly unfair as some parties may wish for the transaction to remain in place, and they just be compensated for their loss. This would particularly be the case when there are collateral contracts in existence, meaning that a whole chain of transactions must be set aside for the original wronged party to achieve any sort of justice. In case law we see that the party is effectively hamstrung from a remedy. In The Atlantic Baron [1979] QB 705, shipbuilders increased the price of a ship they were building by 10% due to currency fluctuation. They had no contractual basis for doing so, but as the owners had a contract for the ship 's charter in place, they had to make the payment. This affirmed the contract, meaning that they could not then have it set aside. If damages were awardable, they could have sought the 10% monetary value back from the builders. Instead they were barred from a claim. The lack of flexibility here is therefore questionable justice for the wronged party, who must, for commercial or other reasons, keep the contract intact. It does not appear at all fair that some of contract law is restrained in this way whilst most other aspects are not. It is the submission of this writer that complete justice will only be found in this area when the innocent party can opt to receive damages in lieu of the recission of the contract. The law in this area requires expansion in order to be entirely
The defendant in his defense brought up the "Conditions" part of contract, that there was a provision stating
A person should not be held to a contract if he or she entered such contract due to a threat or pressure that was put on them. The doctrine of duress in common law covers this issue while in equity it is dealt with by the doctrine of undue influence. Economic duress has had, as McKendrick says, a ‘’somewhat chequered career’’ and being ‘’bedevilled by conceptual confusion’’ . Previously, actual physical violence or threats of physical violence must have been imposed on the individual themselves and the courts recognised such acts to the weaker party as an excuse for avoiding a contract however, the doctrine of duress has become much more expansive throughout the years. A series of English cases from as early as 1731 established the common law doctrine of duress of goods and introduced that money paid under economic compulsion could be recoverable, but the idea of actually setting aside a
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Of all the topics as discussed in the class, the topic consideration has greatly drawn my interest and I got eager to find the appropriate meaning of Consideration in accordance to the Indian Contact Act (1872). The meaning of the term consideration is defined in Section 2 (d) of the Act is somewhat different from how the word ‘Consideration’ is understood in ordinary parlance. In this response paper, I seek to explore the specific manner in which the Contract Act defines ‘consideration’ and how such a definition fits in with the general scheme of the Contract Act, with the hope of responding to some of the difficulties the definition of consideration raises for contract law.
The two types of duress are physical compulsion, which is a violent way to force someone to sign a contract. It can be pointing someone with a gun. Improper threats, which includes economic and social coercion. Physical compulsion renders the contract void, and improper threats renders the contract voidable by the party who was coerced.
In support of his argument, Dr. Whyte has cited only two antiquated West Virginia cases, both of which are easily capable of distinction. In the first, Summit Coal Co., v. Raleigh Smokeless Fuel Co., 99 W.Va. 11, 128 S.E. 298 (1928), the Court affirmed a directed verdict against a party who had waited too long to question the performance of its counterparty, saying “[t]hese unquestioned agreements clearly establish an estoppel against the plaintiff and bar its rights
Lord Atkins, established the ‘Neighbour Principle” that sought to consider the third party beyond the agreement between the manufacturer and purchaser. This argument formed the Obiter Dictum, defined as a ‘remark’ or an ‘accessory argument’ stated during a ruling (Palmirani, et al. 2012, p.
The defense of duress is available where a defendant commits a crime to prevent the greater of death or serious injury to himself or another threatened by a third party. On the other hand, the defense of necessity refers to circumstances where a person chooses to commit an offence to avoid a greater evil to them or another which would result from objective dangers arising from the circumstances in which they are placed . The difference between these two similar defenses is that duress is regarded as an excuse in English Law, whereas necessity is regarded as a justificatory defense.
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
In English Law consideration is one of the three main areas of an enforceable contract. It may be defined as an act, forbearance or promise made by a single party that constitutes the price for which the promise of another, is bought. In simple terms, the basic understanding of consideration may be seen as a ‘give and take’ tactic between two parties.
There are many forms of defense used in criminal court, one of them being duress. Duress, which is also know as compulsion is when a person commits a crime because someone using force either coerces them to do so or threatens to use force. In general duress is used, as a defense when the crime committed is less serious than the crime avoided. An example of duress would be a mother who would be forced to rob a bank because someone is holding her children hostage. The defense of duress is different in all states, some states state that one can not use the defense of duress when it come to crimes such as homicide.