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ILLEGITIMATE PRESSURE IN THE LAW OF DURESS

Lloyd's Maritime and Commercial Law Quarterly

ILLEGITIMATE PRESSURE IN THE LAW OF DURESS

Henry Cooney* and Harry Sanderson

This article considers the element of illegitimate pressure in a finding that a transaction has been vitiated by duress. A difficult question within the law of obligations concerns when pressure comprising a threat of lawful action is nonetheless illegitimate. This article argues that there are four factors relevant to the legitimacy of otherwise lawful pressure. In doing so, we argue that the “test” for illegitimacy proposed by the Supreme Court in Pakistan International Airlines Corp v Times Travel (UK) Ltd is unsatisfactory. Though we focus on English law, we also consider the law of duress in Australia.

I. INTRODUCTION

The evolution of duress has been described as one of the most exciting developments in modern law.1 Much has changed since the time duress was limited to threats of violence; now a variety of threats can constitute “illegitimate” pressure. One unfortunate consequence of this expansion is that it is no longer clear when pressure is illegitimate. Sometimes the legitimacy of pressure can be determined by an independent standard of lawfulness. These are the easy cases. In other cases, including in most cases of “lawful act duress”, it is difficult to determine how the legitimacy of pressure is assessed. This problem continues to trouble courts and commentators, and the recent decision of the Supreme Court in Pakistan International Airlines Corp v Times Travel (UK) Ltd 2 only
Illegitimate pressure in the law of duress

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