If we have more favourable rules to deter fraud, then why not also economic duress? Both are deliberate and malicious wrongs. The scope of duty test in Saamco from Lord Hoffmann seems flexible enough in principle to cover that.

But the key is whether, as well as duress invalidating the transaction this is also a tort. Without knowing the background to the Canadian SC on intimidation, labour lawyers have long argued that threatening to break a contract on strike for the good faith purpose of a trade dispute is never a wrong, eg Commonwealth v Hunt in Mass in 1840ish. By extension any other good faith threat to breach is also not. But in the venue hire example the demand for money pursues an illegitimate purpose: see R v AG of England and Wales. So the key to distinguish different kinds of threats is good faith. 

Best wishes, Ewan



A bit of creative judging might be able to tease out an implied term that neither party will do anything deliberately aimed at preventing the contract being performed as originally agreed.

Andrew

On 31/10/19 14:10, Eoin.Quill wrote:

It certainly looks to me like a scenario where a tort action with a direct consequences remoteness rule would provide a better answer than the alternates (though, I can see others disputing ‘better’); if intimidation has a reasonable foreseeability remoteness rule, recovery could be more problematic (but not unarguable)

 

Eoin Quill

School of Law

University of Limerick

 

<image002.jpg>

      

<image001.png>

   

<image004.png>

   

<image009.png>

      

<image010.png>

 

<image007.jpg>

 

From: jneyers@uwo.ca <jneyers@uwo.ca>
Sent: Thursday 31 October 2019 13:57
To: Obligations <obligations@uwo.ca>
Subject: 2-party Intimidation and Breach of Contract

 

**CAUTION EXTERNAL EMAIL**
This email originated from outside of the University of Limerick. Do not click on links or open attachments unless you recognize the sender's email address and know the content is safe.

 

Dear Colleagues:

 

Assume that A and B have a contract for the rental of a venue for a wedding reception. Hours before the reception, B threatens to lock A out unless A makes an additional payment of $1500.  A makes the payment, but in so doing is rendered unable to invest in a valuable business opportunity that turns out to be wildly successful (ie losing a profit of $10,000).  Is there a way for A to recover the $10,000?

 

An action for duress would only led to a return of the $1500.

 

An action for breach of contract would seemingly fail as the contract was not actually breached (the venue was provided) and the anticipatory repudiation was not accepted by A (for good reason). Even if one could argue that there was a breach of some duty imposed by Bhasin v Hrynew it seems likely that the damages would run afoul of the Hadley v Baxendale remoteness rule.

 

A claim in 2-party intimidation would arguably fail, at least in Canada, since our Supreme Court has intimated that a threatened breach of contract is not unlawful means for the tort of intimidation. Instead the court stated that A should sue for breach of contract instead which would lead to no recovery (see above).

 

Does this seem right? If this is correct, and one thinks that there should be recovery, what is the means of recovery? I am leaning towards thinking that the SCC was wrong to suggest that breaches of contract can never be unlawful means for two-party intimidation, but am very interested in your thoughts.   

 

Sincerely,

 

 

 

<image008.jpg>

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

--

--

Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here

Disclaimer: This email (including any attachments) is for the use of the intended recipient only and may contain confidential information and/or copyright material. If you are not the intended recipient, please notify the sender immediately and delete this email and all copies from your system. Any unauthorized use, disclosure, reproduction, copying, distribution, or other form of unauthorized dissemination of the contents is expressly prohibited.