This essay delves in the moral aspects of contract law through a detailed analysis of the jurisprudence of economic duress. Answering questions like; Does the common law doctrine of economic duress make courts, not legislators, aribrators of commercial morality. Further, does this inject uncertainty in contract law? Where do judges decide on what is legitimate commercial pressure in hard cases?
I further argue that a legislator should establish the foundations of an absolute test for judges, following the civil law system - to promote efficient and cost effective justice . Put simply - with clear rules, the ability to appeal is reduced.
Table of Contents
1. Introduction
2. Historical Origins of Doctrine
3. Alternative Protections
4. What is legitimate commercial pressure?
5. Tort of Intimidation: A Turning Point
6. Lack of a Threat: Requirements
7. Morality in Commercial Dealings
8. The Seed: Occidental Worldwide Investment Corp
9. Key Factors to Economic Duress
10. Abnormalities in the Doctrine
11. Issues with a General Moral Code?
12. Trapped in a Historical Formula: Should Logic Prevail?
13. Conclusion
Research Objectives and Themes
The paper examines the legal doctrine of economic duress, specifically focusing on the tension between commercial practice and the judiciary's role as an arbiter of morality. It questions whether judges should be tasked with making moral judgments in commercial disputes or if this responsibility rests with the legislature, ultimately arguing for a clearer, more predictable legal framework.
- The distinction between legitimate and illegitimate commercial pressure.
- The intersection of economic duress and the tort of intimidation.
- The influence of "good faith" and moral considerations in judicial decision-making.
- Comparative analysis of contract law approaches, including US and UK jurisprudence.
- The necessity for legislative intervention to establish absolute tests for economic duress.
Excerpt from the Book
What is legitimate commercial pressure?
In determining whether the commercial pressure being put upon a claimant is illegitimate, the courts must consider a range of different factors. These factors include but are not limited to (i) whether there has been an actual or threatened break of contract (ii) whether the victim had any realistic practical alternative but to submit to the pressure (iii) whether the person allegedly exerted the pressure had acted in good or bad faith (iv) whether the victim protested at the time; and (v) whether he affirmed and sought to rely on the contract.
The following case exemplifies clearly that a threat to break a contract has constituted economic duress and where it has had the most success. In Occidental Worldwide Investment Corporation v Skibs (The Sibeon and The Sibotre) there was a threat by charterers of two ships to break their charter parties by not paying the agreed charter fee unless that was fee was lowered. In short, the court found the owners guilty of misrepresentation but acknowledged that the doctrine of economic duress could apply.
Summary of Chapters
Introduction: Outlines the definition of economic duress and the central thesis that the judiciary should not act as an arbiter of commercial morality.
Historical Origins of Doctrine: Traces the relatively modern emergence of economic duress in English law, highlighting key cases like Pao On v Lau Yiu Long.
Alternative Protections: Discusses the significance of The Universal Sentinel and Lord Scarman’s insights into the nature of pressure versus its effects.
What is legitimate commercial pressure?: Analyzes factors determining illegitimacy, such as good faith and the availability of realistic alternatives.
Tort of Intimidation: A Turning Point: Explores the connection between the tort of intimidation and economic duress, referencing the Kolmar case.
Lack of a Threat: Requirements: Investigates cases where lawful but unethical conduct can still potentially constitute economic duress.
Morality in Commercial Dealings: Argues that courts should avoid moral reasoning in commercial dealings, citing ambiguity in current precedents.
The Seed: Occidental Worldwide Investment Corp: Reviews the seminal Occidental case as the foundation for modern economic duress claims in the UK.
Key Factors to Economic Duress: Summarizes the essential elements for a claim, emphasizing the subjective role of morality and good faith.
Abnormalities in the Doctrine: Examines why the lack of a definite legislative test forces judges to rely on subjective moral concepts.
Issues with a General Moral Code?: Discusses the difficulty of applying a unified moral test in a pluralistic, modern society.
Trapped in a Historical Formula: Should Logic Prevail?: Critiques recent case law and advocates for a more logical, fact-based approach to economic duress.
Conclusion: Reaffirms the author's position that the doctrine is a necessary, albeit complex, addition that requires legislative clarification.
Keywords
Economic Duress, Contract Law, Commercial Pressure, Judiciary, Morality, Good Faith, Illegitimate Pressure, Tort of Intimidation, Occidental Worldwide Investment Corp, Breach of Contract, Legislation, Jurisprudence, Bargaining Power, Litigation, Legal Doctrine.
Frequently Asked Questions
What is the core subject of this paper?
The paper fundamentally deals with the legal doctrine of economic duress within contract law and the ongoing debate regarding the extent to which judges should influence these decisions based on moral considerations.
What are the central themes discussed?
Key themes include the distinction between legitimate commercial bargaining and illegitimate pressure, the role of good faith, and the recurring confusion caused by a lack of clear legislative rules.
What is the primary research goal?
The primary goal is to critically discuss the view that economic duress is an "unwelcome addition" to contract law and to argue that it is actually a valuable, necessary mechanism that should be guided by clearer legal tests rather than judicial morality.
Which scientific method is applied?
The paper utilizes a legal research methodology, involving the analytical examination of case law, statutory provisions, and academic literature to identify trends and gaps in the application of economic duress.
What topics are covered in the main body?
The main body covers historical origins, case-specific analyses (such as Occidental and Kolmar), the relationship between economic duress and the tort of intimidation, and a comparative look at international approaches.
Which keywords characterize this work?
Major keywords include Economic Duress, Contract Law, Commercial Pressure, Good Faith, and Judiciary.
How does the author interpret the case of Kolmar Group AG v Traxpo Enterprises?
The author views Kolmar as a landmark case that illustrates the blurring lines between economic duress and the tort of intimidation, emphasizing the court's expectation that companies behave properly in commercial dealings.
What is the author's stance on the role of the legislature?
The author firmly believes the legislature has failed to provide a definitive, absolute test for economic duress, thereby forcing judges to act as moral arbiters, which the author argues is inappropriate in a commercial context.
- Citar trabajo
- Ronan Garvey (Autor), 2015, Economic Duress: Judges as Arbitrators of Commercial Morality?, Múnich, GRIN Verlag, https://www.grin.com/document/544540
