Doing “Practical Justice” for Duress in Contract Law

Cases of duress in contract law are few and far between. Most are concerned withimproper threats or taking advantage of a weaker party to procure a contract rather than withactual physical threats of the “[y]our money or your life” variety, which are more likely tobe controlled by the criminal law. A recent decision on a preliminary issue of law inrelation to duress in the English Court of Appeal answered an interesting question thatappears never to have been raised in earlier cases about duress, that is, whether rescissionof a contract can be granted where restitution is impossible because one of the parties hasdestroyed documents relating to the contract as required by the contract so that they couldnot be restored. The trial judge found that rescission could not be granted and that no otherremedy was available in the common law for duress, but the Court of Appeal reversed thatfinding by assimilating the fact situation with those in which equity has done “practicaljustice,” thereby further fusing the common law and equity relating to duress and undueinfluence, and possibly also fraud as well. The facts of this highly complex case, which alsoinvolved conflict of laws, mistake, frustration, and uncertainty have yet to be resolved at trial,but the Court of Appeal entertained two preliminary questions of law, duress, and conflictof laws before sending the case to trial. This comment is focused on the duress point.