A threat to damage a business or personal financially where unfair pressure is exerted in a commercial context, here a party is deprived of their free will and consent
First discussed
Obiter by Lord Denning in D&C Builders V Rees where one party took advantage of the builders financial position
Where was ED confirmed
Sibeon and Sibotre - 2 tier test developed
has V protested
has V openly argued Confirmed in Atlantic Baron where there was ED but time delay meant remedy was lost and contract affirmed
Pao On V Lau Yiu Long
In Pao On V Lau Yiu Long - Lord Scarman stated that ED is a 'coercion of will which vitiates consent'. laid criteria stating that V must protest, seek alternative, seek independent advice and attempt to repudiate
The Universal Sentinel and Atlas Express V Kiafco
ED was seen where 'illegitimate' pressure is exerted on businesses
Illegitimate
threat to end the contract or breach terms of a contract
threats to withdraw services, e.g threat to not renew are legitimate or a threat that is allowed under terms (C+N Cash and Carry V Gallagher)
lawful threats that are illegitimate
In Progress Bulk Carriers V Tube City V had no alternative and there was a false sense of security
If ED is present
the contract = voidable and C may have the right to restitution(gaining back losses). There is no right to damages
what is a vitiating factor
one which operates to invalidate an otherwise perfectly performed contract
