Date: Fri, 30 Nov 2007 13:05

From: Adam Kramer

Subject: Third party duress and battery

I agree with Robert that consent for these purposes must be an objective question (or, which amounts to the same thing, must be a matter of reasonable belief in consent).

I should think that actual or constructive notice of duress should operate to invalidate the defendant’s defence of consent, as in the Barclays v O’Brien and Royal Bank of Scotland v Etridge (No 2) line in contract law. This could be because there is no apparent consent where there is actual or constructive notice of duress.

If that is right, then it opens the door to all sorts of policy/common sense manipulation, if the courts are so interested. In O’Brien/Etridge the banks are treated as having constructive notice if they don’t ensure the guarantor/wife etc with no obvious reason to do the deal has independent advice, largely because banks can impose such a policy and therefore they are the party on which the courts are focusing in order to prevent unduly influenced guarantees/mortgages.

So why not say that (i) many prostitutes are subjected to duress to the person by pimps etc (this would need to be demonstrated), (ii) many such prostitutes are unable to escape such duress themselves, (iii) ‘customers’ can, however, check to see whether prostitutes are covered by a particular protective scheme (run by a charity, government, trade union etc), (iv) if ‘customers’ don’t do this then they have constructive notice of any duress, (v) and so their defence of consent is unavailable (and any contract, assuming not void for illegality, is voidable). (What a society does if there is no scheme as in (iii) is up to it: it could say that ‘customers’ are therefore always running the risk of committing battery, or it could say that the logic doesn’t apply and the ‘customer’ is off the hook until such a scheme is imposed.)

Adam Kramer

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