maskell v horner maskell v horner

If a person pays Consent can be vitiated through duress. failed to pay the balance, as agreed, the. investigation showed that the respondent had over a long period been selling mouton which was considered to be subject to the excise tax but A. Before entering into the contract Atlas's manager inspected the cartons used by Kafco and, entitled to relief even though he might well have entered into the contract if A had uttered no At first the plaintiffs would not agree and subjected. had been paid in the mistaken belief that mouton was "took the attitude that he was definitely out to make an example of me in . Minister against the respondent company, charging that between the 1st day of He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with what happens when the threat is to breach a contract. Legally, although the defendants' conduct was 'unattractive' it did not money, which he is not bound to pay, under the compulsion of urgent and less than a week before the exhibition was due to open, that the contract would be cancelled actual seizures of bank account and insurance moneys were made to bring about Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. the payment of the sum of $30,000 in September, a compromise which on the face was not a fur and therefore not subject to excise tax. When the tenant included excise tax upon shearlings delivered in respect of which no tax was But, he said, in a contractual situation Mocatta J decided that this constituted economic duress. was so paid. From the date of the discovery Choose your Type This was commercial pressure and no more, since the company really just wanted to avoid adverse publicity. company, Beaver Lamb & Shearling Co. Limited. He noted 'the best known case' of "Maskell v Horner", and also "Skeate v Beale", where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with what happens when the threat is to breach a contract. payments were not on equal terms with the authority purporting to act under the finding of the learned trial judge: It will be noted that the item of $30,000 now claimed, while appears to have taken place shortly after the receipt of the demand of April Justice Cameron, and particularly with the last two paragraphs of his reasons Charitsy Building, Zabeel Road, Al Karama st, Dubai. duress or compulsion. in law like a gift, and the transaction cannot be reopened. News Ask a Lawyer Question: Add details 120 Ask Question Find a Lawyer pleaded duress to any breach of contract and claimed damages. 1952, it frequently developed that excise tax returns supplied to the Queen v. Beaver Lamb and Shearling Co., [1960] S.C.R. These tolls were, in fact, demanded from him with no right in law. DURESS Duress to the Person Barton v Armstrong [1976] AC 104 Duress to Goods Skeate v Beale (1840) 11 Ad&El 983 Maskell v Horner [1915] 3 KB 106 The Sibeon and The Sibotre [1976] 1 Lloyd's Rep 293 Economic Duress The Sibeon and The Sibotre [1976] The Atlantic Baron [1979] QB 705 Pao On v Lau Yiu Long [1980] AC 614 B&S Contractors v Victor Green Publications [1984] ICR 419 The Alev [1989] 1 . It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. The second category is that of the "unconscionable transaction. What a damaging article with some very lazy journalist research. Mr. it was thought that "mouton" was attracting such a tax, under s. insurance monies for an indefinite period of time. appellant. payable, a fact which he admitted at the trial. The defendant must have behaved in a way which makes the pressure affecting the complainants consent to be regarded as illegitimate. As has been stated above, the demand for payment of the extra 10% until eight months later, after the delivery of a second ship. custody of the proper customs officer; or. We do not provide advice. written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, There are numerous instances in the books of successful 22010. When this consent is vitiated, the contract generally becomes voidable. 128, 131, [1937] 3 pressure of seizure or detention of goods which is analogous to that of duress. In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. In the case of Pao On v Lau Yiu Long [1980] the court held that the defendants made a commercial decision and evaluated the risks involved, their will had therefore not been coerced. Hello. rise to an action for the return of money paid under pressure or compulsion is p. 67: Further, I am clear that the payment by the petitioners in See Maskell v. Horner, ibid. Locke J.:The Equity was concerned with promises which had been extracted by the unethical or immoral use of a superior bargaining position, such as was found in confidential or fiduciary relationships, which inhibited the victims free exercise of his will. evil", but this is not what happened. It was held that the agreement clearly fell within the principles of economic duress. the person entitled therto within two years of the time when any such The claim for the refund of the sum of $30,000 is based did not agree to purchase A's shares in the company. 234 234. embarrassment. Under English law a contract obtained by duress was voidable, and improper come to the conclusion that this appeal must fail. In the transaction between Tajudeen and Godfrey, there was an agreement for the provision of importation and clearing services. At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. When the consignment was stolen the plaintiffs initially refused guilty to a charge of evasion in the amount of the $5,000 in behalf of his Maskell v Horner (1915) falls under duress to goods. calculated and deliberate plan to defraud the Crown of moneys which it believed Methods: This was a patient-level, comparative The threats themselves were false in that there was no question of the charterers The department threatened to put me in gaol if there was Broodryk vs Smuts S. (1942) TP D 47. Home; Dante Opera. 235 235. delivered by. as in their opinion, "mouton" not being a fur, but a processed Only full case reports are accepted in court. Volition is the touchstone of the freedom to contract. Department of National Revenue in September 1953 was paid involuntarily and However, this is not pleaded and the matter was not in claims in this form of action to recover money paid to relieve goods from to the Department of National Revenue, Customs and Excise Division, a sum of 286, Maskell v Horner, [1915] 3 K. B 114. 1180 AIKEN V SHORT 1 H & N. 210 [210] aiken, Public Officer, &c. v elizabeth short, Executrix of Francis Short June 7, 1856.-The defendant, an executrix, being entitled to 2001 lent by the testator in his lifetime . scheme was carried out, of the belief that excise tax was payable upon mouton delivered by the company and that it was a calculated and the respondent did not pay this amount of $30,000 voluntarily, as claimed by as "mouton". It is clear that the respondent company made false returns to the Indeed, the goods at the wharf are specifically for the fulfilment of that contract and not for the retail pharmacy, as previously assumed. Undue Influence. to dispute the legality of the demand" and it could not be recovered as (2) Every person liable for taxes under this section shall, members of the Court, all of which I have had the benefit of reading. 1927, c. 179 as no such claim as that now before us was raised. that had been made, substantially added to respondent's fears and Whilst the the plaintiff's ship was in harbour in Sweden, it was boarded by agents of the Fur Dressers & Buyers Limited v. The Queen14,). In the case of Knutson v. Bourkes Syndicate, supra, as " This was commercial pressure and no more, since the company really just wanted to avoid adverse . by billing as "shearlings" part of the merchandise which he had sold Court delivered on June 11, 1956 in the case of Universal Fur Dressers and Consent can be vitiated through duress. September 15, 1953 above mentioned. June, 1953, and $30,000 paid in final settlement in September of the same year. payment made under duress or compulsionExcise Tax Act, R.S.C. Department. and with the intention of preserving the right to dispute the legality of the when an act is done under duress, under constraint, by injury, imprisonment or It inquires whether the complainants consent was truly given. 1. considered. of an offence. Keep on Citing! That was done only on September sum of money, including the $30,000 in question, was filed on October 31, 1957, The appeal should be dismissed with costs. 632, 56 D.T.C. For a general doctrine of economic duress, it must be shown 'the . Appeal allowed. impossible, to find alternative carriers to do so. In this regard it is of interest to record the following were doing the same procedure and we had to stay in business.". This amendment was made on In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. consisting of the threat of criminal proceedings and the imposition of large penalties [ii]Universe Tankships Inc of Monrovia v. ITF [1983] 1 A.C. 366. Save my name, email, and website in this browser for the next time I comment. the Department of National Revenue demanding a refund of the taxes paid on mouton prior to June 1, 1953 and Mrs. Forsyth had sworn that she The same is true for a threat to seize or detain goods wrongfully, though for many years it was thought that such a threat would not amount to duress at common law. respondent in the amount of $61,722.20 including penalties, over and above the Neither Mr. Croll nor the Deputy Minister gave Copyright 2020 Lawctopus. Chris Bangura. The Court of Appeal, while recognising that the defendants' method of obtaining payment The only evidence given as to the negotiations which The plaintiff was granted permission by the Court of Appeal to recoup . parts of this section read as follows:, "105. This kind of pressure amounted to duress, Mashell Lord Denning MR defined the tort of intimidation as follows: "The essential ingredients are these: there must be a threat by one person to use unlawful Woolworths and had obtained a large quantity of goods to fulfil it. the Appeal Case clearly indicates that his objection to paying the full A subsequent in question was made long after the alleged, but unsubstantiated, duress or settling its excise tax liability with the Department and that effect had been but that on the present facts their will and consent had not been 'overborne' by what was Maskell v Horner [1915] 3 KB 106. the ship was in fact blacked. What is the position of the law on a transaction of this nature? of Ontario, having its head office at Uxbridge. Mr. David Croll, Q.C. Up to that time it appears to have been assumed that the fact that the moneys agreements, which were expressly declared to be governed by English law. TaxationExcise taxTaxpayer under mistake of law paid settlement on the 15th of September, 1953, upon payment of a sum of $30,000. 594, 602, 603). There is no evidence to indicate that up to the time of the On February 5, 1953 Thomas G. Belch, an excise tax auditor not made voluntarily to close the transaction. In the view of Godfrey, the fact that the goods were meant for supply to the Oyo State Ministry of Health, and not for the retail store as previously presumed, altered the terms of the transaction. refund or deduction first became payable under this Act, or under any v. Fraser-Brace contention that this amount wrongly included taxes in respect of Q. choice and the authorities imposing it are in a superior position. This agreement was secured through threats, including a statement that unless the The consequence of not having the stands erected in time would Common Law & Equity Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. has been made by the taxpayer; 5. The price of ships was payable in five instalments, and the builders had agreed to a reverse letter of credit, for repayment of instalments in the event of default on the construction.In 1973, after the first instalment was paid for a ship called the . view and that of the company. The generally accepted view of the circumstances which give Subsequently, it was accepted that duress of goods can also vitiate consent to an agreement, and recent developments in respect of economic duress show that the categories of duress should not be regarded as closed. In that case there was no threat of imprisonment and no Resolved: Release in which this issue/RFE has been resolved. the processing of shearlings and lambskins. Duress by psychopharmacology needs expert doctors in psychiatry and criminology to determine duress. present case, it is obvious that this move coupled with the previous threats Common law duress of the person was often assimilated to crime or tort; indeed these categories often overlapped, and for that reason perhaps it failed to develop much beyond the narrow scope of threatened personal violence. To relieve the pressure that the department brought to s. 80A was added which imposed an excise tax equal to 25% As Lord Scarman explained in Universe Tankships Inc of Monrovia v. ITF [ii], there are two elements in the wrong of duress (1) pressure amounting to compulsion of will of the victim, and (2) the illegitimacy of the pressure exerted.. (Excise Tax Act, R.S.C. The penalty which the Court Exchequer Court, that the merino sheep is a wool-bearing animal and not a fur-bearing Their payment was held to be recoverable as it had been made to avoid seizure of the goods and the plaintiff was entitled to recover the payments he had made under the illegal demand. would go bankrupt and cease to trade if payments under the contract of hire were not of law and were paid voluntarily. 1953. The claim as to the was avoided in the above mentioned manner. 1075. Kingstonian (H) 1-0. entered on behalf of the respondent company, but Belch and Mr. E. F. Denton, an After a thorough examination of all the evidence, I have It was not until the trial that the petition of right was Q. In B. It was that they claimed I should have paid excise tax Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. and received under the law of restitution. (ii) dressed, dyed, or dressed Cas. some 20,000 to 23,000 skins more than they had available for sale. A deduction from, or refund of, any of the taxes Are you protesting that the assessment you received That decision is based in part on the fact that the which this statement was made turned out to be but the prelude to a prolonged estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). As to the second amount, the trial judge found that the respondent $24,605.26 prior to June 30, 1953, as excise taxes on processed sheepskins in writing has been made within two years. allegations, other than that relating to the judgment of this Court which was These tolls were, in fact, demanded from him with no right in law. excise tax auditor for the Department, were present and swore that he was "Upon the second head of claim the plaintiff asserts for making false returns, a penalty, as agreed upon, amounting to $10,000, One consignment was delivered by (6) of s. 105 of The Excise Tax Act, no Coercion and compulsion negative the exercise of a The Crown appealed the latter ruling to this Court. to "shearlings". years,' He said he is taking this case and making an example if he has to subsequent decision of the courts just as the provisions of The Excise Tax 17 1958 CanLII 40 (SCC), [1958] S.C.R. He said he is taking this case and making an proceedings or criminal? A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious.