Contract Law

Introduction In today’s economic climate businesses often exert commercial pressure during contract negotiation stages. This is a normal part of the process and parties to a contract generally know when pressure being exerted is lawful. Although there is a difference between commercial negotiation and illegitimate pressure, it is often difficult to distinguish between the two. Furthermore, because economic duress can arise from pressure that is not in itself unlawful, parties may be unaware that the pressure they are subjecting a party to a contract is actually economic duress. Despite this, if a court finds that one party to a contract has exerted illegitimate pressure on another party, the innocent party may be able to establish a claim of economic duress. Given how uncertain the economy is at present, hard bargaining is a common form of negotiation, though it is vital that businesses are aware of the risks when exerting pressure that is likely to be deemed illegitimate. It is unclear ho w this distinction can be made, nonetheless, which suggests that further clarity is needed within this area. This study intends to explain the developments that have taken place in the doctrine of economic duress and why the courts perceived a need for a more robust approach in light of the Williams v Roffey Brothers and Nicholls (Contractors) Ltd [1991] 1 QB 1 case. Duress Duress is a common law defence that allows a contract to be set aside in instances where one party has been subjected to force or pressure from the other party to enter into the contract. Duress has been defined as â€Å"making someone do something against his will, or making someone perform an illegal act, by using threats, coercion or other illicit means† (Dictionary, 2014: 1). Duress is basically the use of unlawful means to force another to perform an act by either threatening them or performing an act of violence. The party claiming duress will be required to show that they did not have a choice but to enter into the contract (Cserne, 2009: 57). Economic duress, on the other hand, is a fairly new phenomenon that is becoming an important tool for determining whether a contract that has been entered into is enforceable or not. Economic duress happens when a person’s economic interests are damaged from being forced or coerced into entering into a contract. This type o f duress has been defined as the â€Å"unlawful use of economic pressure and/or threats intended to overcome the free will of a person, in order to force him or her to an involuntary agreement or to do something that he or she would not otherwise do† (Business Dictionary, 2014, 1). Economic duress is essentially a contract law defence that allows a person to dispute the formation of a binding contract by arguing that that they were forced to enter into the contract. Previously, parties to a contract could only rely on the doctrine of consideration for protection when they were being subjected to economic duress. Consideration is the price that one party will pay for another party’s promise (Card et al; 2003: 63); Collins v Godefroy (1831) 1 B&Ad 950. The doctrine of consideration does not allow parties in a contract to insist on further payments to perform tasks they are already required to perform under the contract simply because they are in a stronger bargaining pos ition; Stilk v Myrick (1809) 2 Camp 317. Economic Duress and Commercial Pressure It is now widely accepted by the courts that undue commercial pressure can amount to duress. The doctrine of economic duress has evolved significantly from various trade union decisions including; Universe Tankships v International Workers Federation (â€Å"The Universe Sentinel†) [1983] 1 AC 366 and Dimskal Shipping v International Works Federation (â€Å"The Evia Luck†) [1992] 2 AC 152. In The Universe Sentinel, a trade union, which had blacklisted a ship, forced the owner to provide payment before they would remove the ship from the black list. As there would have been disastrous consequences if the ship could not sail, the owner made the payment. Because the ship owner had no other practical choice but to make the payment, he later brought a successful claim for the recovery of the money by establishing economic duress. Similarly, in The Evia Luck a trade union insisted that a ship owner signed various contractual documents so that his ship could sail, which was fou nd by the court to be a form of economic duress. In order to make an economic duress claim, there are a number of elements the claimant will need to be established. These are; a) that the pressure was illegitimate; b) that the pressure was a significant cause that induced the claimant to enter into the contract; and c) that the practical effect of the pressures means that the claimant has no other choice but to enter into the contract (Ohrenstein, 2013: 2). The claimant will be entitled to avoid the contract and claim restitution of any monies that have been paid under it if these elements can be established. In deciding what amount to illegitimate pressure, the court will take a range of factors into account. For example, in DSND Subsea Ltd v Petroleum Geo Services ASA [2000] EWHC 185 it was made clear that the court will be required to consider whether the breach of contract was an actual or threatened breach; whether the person whom exerts the pressure has acted in good or bad faith; whether the claimant had any real or practical alternative but to give in to the pressure; whether the claimant protested at the time; and whether the claimant sought to rely on the contract. One of the most successful forms of economic duress is a threat to breach a contract. In Siboen and The Sibotre [1976] 1 Lloyd’s Rep 293 charterers of two ships threatened to break their charterparties by refusing to pay the agreed charter rate if the rate was not lowered. The owners of the ships had been informed that the charterers had no substantial assets and that the charterers would otherwise go into liquidation if the charter rates were not lowered. This information was not actually true but it caused the owners to reduce the rates nevertheless. It was found that economic duress could apply to this situation as all of the relevant factors were present. Since this decision, the courts seem to have accepted that economic duress is coercive and therefore worthy of the same relief as duress to the person or property (Chen-Wishart, 2012: 316). In spite of this, the practical application of economic duress has been subject to much confusion and it has been questioned when, if ever, renegotiations should be enforced. It would seem, under the doctrine of consideration, that renegotiations can never be enforced on the basis that â€Å"no additional consideration supports the promise to pay more or accept less† (Chen-Wishart, 2012: 316). Under the promissory estoppel doctrine, the promise to pay the same for less can be enforced in limited circumstances, though this does not apply if illegitimate pressure has been exerted. Therefore, if it can be demonstrated that illegitimate pressure has been applied to the renegotiation of a contract, that contract will not be enforceable. Because commercial contracts are extremely competitive, it is likely to be the case that some form of pressure will always be applied. Though the question to be determined is whether the pressure that has been applied is legitimate or not. This is l ikely to be extremely problematic and thus cause a great deal of complexity for the courts. As exemplified in the cases above, threats to blacklist a ship and refuse its release may constitute duress. Further examples of where economic duress has occurred can be seen in the cases of North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 and Pao On v Lau Yiu Long [1979] UKPC 17 where threats to terminate a contract in the absence of a renegotiation is also illegitimate unless it can be legally justified. What will be deemed â€Å"legally justified† is largely a matter to be determined based upon individual facts and circumstances, though there is likely to remain a lot of confliction in this area. In Williams v Roffey Brothers Ltd [1991] EWCA Civ 5 the Stilk case was severely limited by the courts. Here, the consideration requirement was extended to include â€Å"practical benefits† and thereby covered the promise to perform an existing contract. Here, a number of contractors promised to refurbish 27 flats with a sub-contractor performing the carpentry. Before the flats were finished, the sub-contractor realised that he had under-priced the contract and was resultantly facing financial difficulty. The main contractors offered the sub-contractor a financial inducement to finish the contract on time. It is trite law that consideration is needed for a party to that contract to be able to sue on it. Since the sub-contractor was doing no more than he was already bound to do under the contract, consideration was lacking. Surprisingly, it was held by the court that because the contractors had received a benefit from the sub-contractor, in that they avoided the penalty clause of the main contract, the sub-contractors claim was successful. This did not mean that consideration was present as the benefit did not move from the promisee, although there was a clear departure from the orthodox principle of consideration principle. The doctr ine of consideration maintains that a contract will not be supported by the performance of an existing duty unless that duty exists by virtue of a third party contract (Noble, 1991: 141). This decision conflicts with the decision in Stilk which demonstrated that consideration needs to be of economic value to be deemed good consideration and that it needs to move from the promise as also shown in; White v Bluett (1853) 23 LJ Ex 36; Thomas v Thomas (1842) 2 QB 851; Shadwell v Shadwell (1860) 9 CBNS 159; and Scotson v Pegg (Scotson v Pegg (1861) 6 H & N 295). It has also been argued by Cheshire et al; that; â€Å"the time has come to recognise formally the alternative definition of consideration and admit that the rationale behind the refusal to enforce some types of consideration is pure policy† (Cheshire et al; 2012; 77). Arguably, it appears that the consideration principle is rather outmoded and in need of reform so that a more robust approach to economic duress can be taken by the courts. At present, much confusion arises as to when economic duress can be used as a defence. Judges thus need to err on the side of caution to prevent commercial pressure being mistaken for economic duress and vice versa. Still, as stressed by the court in Adam v Opel Gmbh v Mitras Automotive [2007] EWHC 3481; â€Å"the list of matters to be considered in assessing legitimacy is not exhaustive, and the weight to be attached to each of them will depend on the facts of the individual case.† Furthermore, it was also stated in the case that the decision to be made will involve some element of value judgement when considering whether the pressure that was exerted on the claimant crossed the line from that which must be accepted in normal robust commercial bargaining. It is clear from the decision in this case that the courts have made some attempts to provide clarity in this area and that each case will be decided on its own facts. In the more recent case of Kolmar Group AG v Traxpo Enterprises Pyt Ltd [2010] EWHC 113 it was evidenced that a contract variation between a supplier and a customer will unlikely amount to duress if the supplier is unable to perform a contract as a result of financial difficulties that will cause the supplier to become insolvent. Another problem that arises when it comes to economic duress is whether lawful conduct can amount to illegitimate pressure. Whilst it is possible, it is also extremely rare as shown in CTN Cash and Carry Ltd v Gallaher Ltd [1993] EWCA Civ 19; GMAC Commercial Credit Ltd v Dearden [2002] All ER (D) 440 (May) and Wright v HSBC Bank plc [2006] EWHC 930 QB. Consequently, economic duress will continue to pose many problems as there will always be a debate as to whether particular circumstances may or may not give rise to a claim for economic duress. Because of the uncertainty within this area, it is evident that a more robust approach needs to be taken so that greater clarity and consistency can be provided. Economic duress has also been criticised for being causation-led, thereby meaning that a lack of causation will prevent a successful claim from being made. In Pao On v Lau Yiu Long [1979] UKPC 2 it was pointed out by Lord Scarman that in deciding whether causation was present, it will need to be considered whether the claimant; a) protested; b) had a practical alternative open to him; c) received independent advice; and d) acted promptly. This decision has been criticised for being inconclusive and failing to take into account the fact that claimants may not think that there is any point in protesting. This was recognised by Chen-Wis hart when it was argued that; â€Å"these factors are inconclusive. The victim may not protest because he sees no point in it or he may not wish to antagonise the coercing party whose performance he needs† (Chen-Wishart, 2012: 318). It is clear that the facts and circumstances of each case will be the determining factor as to whether the claimant has suffered economic duress or not. Because of the uncertainty that exists in this area, however, it is often difficult for those entering into commercial contracts to acknowledge that they are exerting pressure that is considered illegitimate, especially when there is a possibility that lawful pressure will also be capable of amounting to economic duress. As a result of this, Young warns against exerting commercial pressure that the courts may possibly consider economic duress: â€Å"Abusing your upper hand can leave the strong open to claims† (Young, 2012: 23). Conclusion Overall, whilst the doctrine of duress is well established in English law, the doctrine of economic duress still remains largely uncertain. This generally arises from the difficulty of distinguishing between legitimate and illegitimate economic duress. As such, it is up to the courts to decide when a person’s economic interests have been damaged from being forced or coerced into entering into a contract. Hence, the court will be required to consider whether the re-negotiation of the terms of the contract were lawful and whether the person being subjected to the economic duress, should be entitled to rescind the contract that they entered into. This is an important defence in ensuring that parties to a contract have equal bargaining power. Nevertheless, the practical application of economic duress has been subject to much confusion over the years, which may result from the reasoning that has been provided by the courts. There appears to be a lack of consistency that is being pr ovided, which highlights the need for future reform to this area. Whilst there is a difference between commercial negotiation and illegitimate pressure, it has proven extremely difficult to distinguish between the two, especially since lawful conduct can also amount to illegitimate pressure. In order to provide clarity to this area, it seems as though a more robust approach is therefore needed by the courts. References Business Dictionary. (2014) Economic Duress, [Online] Available: http://www.businessdictionary.com/definition/economic-duress.html [07 July 2014]. Card, R. Murdoch, J. and Murdoch, S. (2003) Estate Management Law, OUP, 6th Edition. Carr, N. (2011) Walking the Line – The Balance Between Legitimate Negotiation and Economic Duress, Available [Online]: [07 July 2014]. Chen-Wishart, M. (2012) Contract Law, Oxford University Press. Cserne, P. (2009) Duress in Contracts: An Economic Analysis, Contract Law and Economics, Volume 6, 2nd Edition. Furmston, M. P. Cheshire, G C. and Fifoot, C H. (2012) Cheshire, Fifoot and Furmston’s Law of Contract, Oxford University Press: London. Dictionary. (2014) Duress, [Online], Available: http://www.yourdictionary.com/duress [07 July 2014]. Noble, M. (1991) For Your Consideration, New Law Journal, Volume 141, Issue 1529. Ohrenstein, D. (2013) Key Developments in Contract Law: Economic Duress, Radcliffe Chambers, [Online] Available: http://www.radcliffechambers.com/media/Misc_Articles/Key_Developments_in_Contract_Law_-_Economic_Duress_2013.pdf [07 July 2014]. Young, A. (2012) When Pressure Turns to Duress, Construction Law Journal, Volume 23, Issue 5. Cases Adam v Opel Gmbh v Mitras Automotive [2007] EWHC 3481 Collins v Godefroy (1831) 1 B&Ad 950 CTN Cash and Carry Ltd v Gallaher Ltd [1993] EWCA Civ 19 Dimskal Shipping v International Works Federation (â€Å"The Evia Luck†) [1992] 2 AC 152 DSND Subsea Ltd v Petroleum Geo Services ASA [2000] EWHC 185 GMAC Commercial Credit Ltd v Dearden [2002] All ER (D) 440 (May) Kolmar Group AG v Traxpo Enterprises Pyt Ltd [2010] EWHC 113 North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 Pao On v Lau Yiu Long [1979] UKPC 17 Scotson v Pegg (Scotson v Pegg (1861) 6 H & N 295) Shadwell v Shadwell (1860) 9 CBNS 159 Siboen and The Sibotre [1976] 1 Lloyd’s Rep 293 Stilk v Myrick (1809) 2 Camp 317 Thomas v Thomas (1842) 2 QB 851 Universe Tankships v International Workers Federation (â€Å"The Universe Sentinel†) [1983] 1 AC 366 White v Bluett (1853) 23 LJ Ex 36 Williams v Roffey Brothers and Nicholls (Contractors) Ltd [1991] 1 QB 1 Wright v HSBC Bank plc [2006] EWHC 930 QB Contract Law Introduction In today’s economic climate businesses often exert commercial pressure during contract negotiation stages. This is a normal part of the process and parties to a contract generally know when pressure being exerted is lawful. Although there is a difference between commercial negotiation and illegitimate pressure, it is often difficult to distinguish between the two. Furthermore, because economic duress can arise from pressure that is not in itself unlawful, parties may be unaware that the pressure they are subjecting a party to a contract is actually economic duress. Despite this, if a court finds that one party to a contract has exerted illegitimate pressure on another party, the innocent party may be able to establish a claim of economic duress. Given how uncertain the economy is at present, hard bargaining is a common form of negotiation, though it is vital that businesses are aware of the risks when exerting pressure that is likely to be deemed illegitimate. It is unclear ho w this distinction can be made, nonetheless, which suggests that further clarity is needed within this area. This study intends to explain the developments that have taken place in the doctrine of economic duress and why the courts perceived a need for a more robust approach in light of the Williams v Roffey Brothers and Nicholls (Contractors) Ltd [1991] 1 QB 1 case. Duress Duress is a common law defence that allows a contract to be set aside in instances where one party has been subjected to force or pressure from the other party to enter into the contract. Duress has been defined as â€Å"making someone do something against his will, or making someone perform an illegal act, by using threats, coercion or other illicit means† (Dictionary, 2014: 1). Duress is basically the use of unlawful means to force another to perform an act by either threatening them or performing an act of violence. The party claiming duress will be required to show that they did not have a choice but to enter into the contract (Cserne, 2009: 57). Economic duress, on the other hand, is a fairly new phenomenon that is becoming an important tool for determining whether a contract that has been entered into is enforceable or not. Economic duress happens when a person’s economic interests are damaged from being forced or coerced into entering into a contract. This type o f duress has been defined as the â€Å"unlawful use of economic pressure and/or threats intended to overcome the free will of a person, in order to force him or her to an involuntary agreement or to do something that he or she would not otherwise do† (Business Dictionary, 2014, 1). Economic duress is essentially a contract law defence that allows a person to dispute the formation of a binding contract by arguing that that they were forced to enter into the contract. Previously, parties to a contract could only rely on the doctrine of consideration for protection when they were being subjected to economic duress. Consideration is the price that one party will pay for another party’s promise (Card et al; 2003: 63); Collins v Godefroy (1831) 1 B&Ad 950. The doctrine of consideration does not allow parties in a contract to insist on further payments to perform tasks they are already required to perform under the contract simply because they are in a stronger bargaining pos ition; Stilk v Myrick (1809) 2 Camp 317. Economic Duress and Commercial Pressure It is now widely accepted by the courts that undue commercial pressure can amount to duress. The doctrine of economic duress has evolved significantly from various trade union decisions including; Universe Tankships v International Workers Federation (â€Å"The Universe Sentinel†) [1983] 1 AC 366 and Dimskal Shipping v International Works Federation (â€Å"The Evia Luck†) [1992] 2 AC 152. In The Universe Sentinel, a trade union, which had blacklisted a ship, forced the owner to provide payment before they would remove the ship from the black list. As there would have been disastrous consequences if the ship could not sail, the owner made the payment. Because the ship owner had no other practical choice but to make the payment, he later brought a successful claim for the recovery of the money by establishing economic duress. Similarly, in The Evia Luck a trade union insisted that a ship owner signed various contractual documents so that his ship could sail, which was fou nd by the court to be a form of economic duress. In order to make an economic duress claim, there are a number of elements the claimant will need to be established. These are; a) that the pressure was illegitimate; b) that the pressure was a significant cause that induced the claimant to enter into the contract; and c) that the practical effect of the pressures means that the claimant has no other choice but to enter into the contract (Ohrenstein, 2013: 2). The claimant will be entitled to avoid the contract and claim restitution of any monies that have been paid under it if these elements can be established. In deciding what amount to illegitimate pressure, the court will take a range of factors into account. For example, in DSND Subsea Ltd v Petroleum Geo Services ASA [2000] EWHC 185 it was made clear that the court will be required to consider whether the breach of contract was an actual or threatened breach; whether the person whom exerts the pressure has acted in good or bad faith; whether the claimant had any real or practical alternative but to give in to the pressure; whether the claimant protested at the time; and whether the claimant sought to rely on the contract. One of the most successful forms of economic duress is a threat to breach a contract. In Siboen and The Sibotre [1976] 1 Lloyd’s Rep 293 charterers of two ships threatened to break their charterparties by refusing to pay the agreed charter rate if the rate was not lowered. The owners of the ships had been informed that the charterers had no substantial assets and that the charterers would otherwise go into liquidation if the charter rates were not lowered. This information was not actually true but it caused the owners to reduce the rates nevertheless. It was found that economic duress could apply to this situation as all of the relevant factors were present. Since this decision, the courts seem to have accepted that economic duress is coercive and therefore worthy of the same relief as duress to the person or property (Chen-Wishart, 2012: 316). In spite of this, the practical application of economic duress has been subject to much confusion and it has been questioned when, if ever, renegotiations should be enforced. It would seem, under the doctrine of consideration, that renegotiations can never be enforced on the basis that â€Å"no additional consideration supports the promise to pay more or accept less† (Chen-Wishart, 2012: 316). Under the promissory estoppel doctrine, the promise to pay the same for less can be enforced in limited circumstances, though this does not apply if illegitimate pressure has been exerted. Therefore, if it can be demonstrated that illegitimate pressure has been applied to the renegotiation of a contract, that contract will not be enforceable. Because commercial contracts are extremely competitive, it is likely to be the case that some form of pressure will always be applied. Though the question to be determined is whether the pressure that has been applied is legitimate or not. This is l ikely to be extremely problematic and thus cause a great deal of complexity for the courts. As exemplified in the cases above, threats to blacklist a ship and refuse its release may constitute duress. Further examples of where economic duress has occurred can be seen in the cases of North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 and Pao On v Lau Yiu Long [1979] UKPC 17 where threats to terminate a contract in the absence of a renegotiation is also illegitimate unless it can be legally justified. What will be deemed â€Å"legally justified† is largely a matter to be determined based upon individual facts and circumstances, though there is likely to remain a lot of confliction in this area. In Williams v Roffey Brothers Ltd [1991] EWCA Civ 5 the Stilk case was severely limited by the courts. Here, the consideration requirement was extended to include â€Å"practical benefits† and thereby covered the promise to perform an existing contract. Here, a number of contractors promised to refurbish 27 flats with a sub-contractor performing the carpentry. Before the flats were finished, the sub-contractor realised that he had under-priced the contract and was resultantly facing financial difficulty. The main contractors offered the sub-contractor a financial inducement to finish the contract on time. It is trite law that consideration is needed for a party to that contract to be able to sue on it. Since the sub-contractor was doing no more than he was already bound to do under the contract, consideration was lacking. Surprisingly, it was held by the court that because the contractors had received a benefit from the sub-contractor, in that they avoided the penalty clause of the main contract, the sub-contractors claim was successful. This did not mean that consideration was present as the benefit did not move from the promisee, although there was a clear departure from the orthodox principle of consideration principle. The doctr ine of consideration maintains that a contract will not be supported by the performance of an existing duty unless that duty exists by virtue of a third party contract (Noble, 1991: 141). This decision conflicts with the decision in Stilk which demonstrated that consideration needs to be of economic value to be deemed good consideration and that it needs to move from the promise as also shown in; White v Bluett (1853) 23 LJ Ex 36; Thomas v Thomas (1842) 2 QB 851; Shadwell v Shadwell (1860) 9 CBNS 159; and Scotson v Pegg (Scotson v Pegg (1861) 6 H & N 295). It has also been argued by Cheshire et al; that; â€Å"the time has come to recognise formally the alternative definition of consideration and admit that the rationale behind the refusal to enforce some types of consideration is pure policy† (Cheshire et al; 2012; 77). Arguably, it appears that the consideration principle is rather outmoded and in need of reform so that a more robust approach to economic duress can be taken by the courts. At present, much confusion arises as to when economic duress can be used as a defence. Judges thus need to err on the side of caution to prevent commercial pressure being mistaken for economic duress and vice versa. Still, as stressed by the court in Adam v Opel Gmbh v Mitras Automotive [2007] EWHC 3481; â€Å"the list of matters to be considered in assessing legitimacy is not exhaustive, and the weight to be attached to each of them will depend on the facts of the individual case.† Furthermore, it was also stated in the case that the decision to be made will involve some element of value judgement when considering whether the pressure that was exerted on the claimant crossed the line from that which must be accepted in normal robust commercial bargaining. It is clear from the decision in this case that the courts have made some attempts to provide clarity in this area and that each case will be decided on its own facts. In the more recent case of Kolmar Group AG v Traxpo Enterprises Pyt Ltd [2010] EWHC 113 it was evidenced that a contract variation between a supplier and a customer will unlikely amount to duress if the supplier is unable to perform a contract as a result of financial difficulties that will cause the supplier to become insolvent. Another problem that arises when it comes to economic duress is whether lawful conduct can amount to illegitimate pressure. Whilst it is possible, it is also extremely rare as shown in CTN Cash and Carry Ltd v Gallaher Ltd [1993] EWCA Civ 19; GMAC Commercial Credit Ltd v Dearden [2002] All ER (D) 440 (May) and Wright v HSBC Bank plc [2006] EWHC 930 QB. Consequently, economic duress will continue to pose many problems as there will always be a debate as to whether particular circumstances may or may not give rise to a claim for economic duress. Because of the uncertainty within this area, it is evident that a more robust approach needs to be taken so that greater clarity and consistency can be provided. Economic duress has also been criticised for being causation-led, thereby meaning that a lack of causation will prevent a successful claim from being made. In Pao On v Lau Yiu Long [1979] UKPC 2 it was pointed out by Lord Scarman that in deciding whether causation was present, it will need to be considered whether the claimant; a) protested; b) had a practical alternative open to him; c) received independent advice; and d) acted promptly. This decision has been criticised for being inconclusive and failing to take into account the fact that claimants may not think that there is any point in protesting. This was recognised by Chen-Wis hart when it was argued that; â€Å"these factors are inconclusive. The victim may not protest because he sees no point in it or he may not wish to antagonise the coercing party whose performance he needs† (Chen-Wishart, 2012: 318). It is clear that the facts and circumstances of each case will be the determining factor as to whether the claimant has suffered economic duress or not. Because of the uncertainty that exists in this area, however, it is often difficult for those entering into commercial contracts to acknowledge that they are exerting pressure that is considered illegitimate, especially when there is a possibility that lawful pressure will also be capable of amounting to economic duress. As a result of this, Young warns against exerting commercial pressure that the courts may possibly consider economic duress: â€Å"Abusing your upper hand can leave the strong open to claims† (Young, 2012: 23). Conclusion Overall, whilst the doctrine of duress is well established in English law, the doctrine of economic duress still remains largely uncertain. This generally arises from the difficulty of distinguishing between legitimate and illegitimate economic duress. As such, it is up to the courts to decide when a person’s economic interests have been damaged from being forced or coerced into entering into a contract. Hence, the court will be required to consider whether the re-negotiation of the terms of the contract were lawful and whether the person being subjected to the economic duress, should be entitled to rescind the contract that they entered into. This is an important defence in ensuring that parties to a contract have equal bargaining power. Nevertheless, the practical application of economic duress has been subject to much confusion over the years, which may result from the reasoning that has been provided by the courts. There appears to be a lack of consistency that is being pr ovided, which highlights the need for future reform to this area. Whilst there is a difference between commercial negotiation and illegitimate pressure, it has proven extremely difficult to distinguish between the two, especially since lawful conduct can also amount to illegitimate pressure. In order to provide clarity to this area, it seems as though a more robust approach is therefore needed by the courts. References Business Dictionary. (2014) Economic Duress, [Online] Available: http://www.businessdictionary.com/definition/economic-duress.html [07 July 2014]. Card, R. Murdoch, J. and Murdoch, S. (2003) Estate Management Law, OUP, 6th Edition. Carr, N. (2011) Walking the Line – The Balance Between Legitimate Negotiation and Economic Duress, Available [Online]: [07 July 2014]. Chen-Wishart, M. (2012) Contract Law, Oxford University Press. Cserne, P. (2009) Duress in Contracts: An Economic Analysis, Contract Law and Economics, Volume 6, 2nd Edition. Furmston, M. P. Cheshire, G C. and Fifoot, C H. (2012) Cheshire, Fifoot and Furmston’s Law of Contract, Oxford University Press: London. Dictionary. (2014) Duress, [Online], Available: http://www.yourdictionary.com/duress [07 July 2014]. Noble, M. (1991) For Your Consideration, New Law Journal, Volume 141, Issue 1529. Ohrenstein, D. (2013) Key Developments in Contract Law: Economic Duress, Radcliffe Chambers, [Online] Available: http://www.radcliffechambers.com/media/Misc_Articles/Key_Developments_in_Contract_Law_-_Economic_Duress_2013.pdf [07 July 2014]. Young, A. (2012) When Pressure Turns to Duress, Construction Law Journal, Volume 23, Issue 5. Cases Adam v Opel Gmbh v Mitras Automotive [2007] EWHC 3481 Collins v Godefroy (1831) 1 B&Ad 950 CTN Cash and Carry Ltd v Gallaher Ltd [1993] EWCA Civ 19 Dimskal Shipping v International Works Federation (â€Å"The Evia Luck†) [1992] 2 AC 152 DSND Subsea Ltd v Petroleum Geo Services ASA [2000] EWHC 185 GMAC Commercial Credit Ltd v Dearden [2002] All ER (D) 440 (May) Kolmar Group AG v Traxpo Enterprises Pyt Ltd [2010] EWHC 113 North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 Pao On v Lau Yiu Long [1979] UKPC 17 Scotson v Pegg (Scotson v Pegg (1861) 6 H & N 295) Shadwell v Shadwell (1860) 9 CBNS 159 Siboen and The Sibotre [1976] 1 Lloyd’s Rep 293 Stilk v Myrick (1809) 2 Camp 317 Thomas v Thomas (1842) 2 QB 851 Universe Tankships v International Workers Federation (â€Å"The Universe Sentinel†) [1983] 1 AC 366 White v Bluett (1853) 23 LJ Ex 36 Williams v Roffey Brothers and Nicholls (Contractors) Ltd [1991] 1 QB 1 Wright v HSBC Bank plc [2006] EWHC 930 QB

Hester Prynne and her Subconscience Essay

The mind is by far one of the most intriguing and unknown parts of the human body, but it has been broken down into three distinguishable parts by Sigmund Freud. He has broken the mind into the id, ego, and superego. These are all parts of the human mind that control each and every action or thought that a person has. The id is the pleasure part, and it controls actions that occur without thought of punishment. The ego controls all actions that occur consciously and with knowledge of the consequences. The superego is the part of the brain that holds a person back from committing an action. Both the action and consequences are thought about before the act is done. These three mental states occur in all people, but especially within Hester Prynne from The Scarlet Letter. Throughout the story her mindset changes many times. It starts out in the id phase and works its way to the superego and finally retreats back to the ego. Hester shows that it is possible for all three parts of the brain to work in close proximity to one another. The id phase of Hester’s actions is one of the most important to the progression of the book. Her actions in this id phase are committed before the book even begins. She is a married woman and she ends up sleeping with the young minister of her town after many years of waiting for her husband to come over to America from England. Hester wanted to wait for him, but she did not really ever love him and she felt she needed to find someone else. This is when she committed her act of adultery. She did not think about the consequences that would come with her actions. The act was done in a spur-of-the-moment situation. This was all because of Hester’s id part of the brain. Hester went through the superego stage after the id. This was when she decided she was not going to tell anyone the identity of either Pearl’s father or of Chillingworth. She was conscious of what could result if this information was given out to the public, and she did not want to go through anymore shame or punishment. This demonstrates the aspect of the superego working in her brain. She could have gone out and put all the blame that she was receiving on Dimmesdale and revealed the truth about Chillingworth and his past. She did not do this however, because she did not want to blame  anyone else and she did not want to hurt the one person she really did love. All of these actions and thoughts that she had show how her superego played a large role in how she handled her everyday life after receiving the â€Å"A.† The last phase that Hester goes through in the story is the ego phase. This is when she decides that it is no longer worth it for her to hold back Chillingworth’s real identity from Dimmesdale and also when she encourages Dimmesdale to tell the truth about himself. She new perfectly well what the consequences to her actions would be, but she was willing to go through with them. This is a great example of someone working in the ego phase. The only problem with her thought process was that both Dimmesdale and Chillingworth ended up dieing. Dimmesdale had nothing left to live for and Chillingworth was alive, because he wanted to torment Dimmesdale. All of Hester’s actions show how the three mental phases in everyone’s minds are very closely related to one another. Every person is under the control of the three parts of the human brain, but in the case of Hester Prynne, all three work in a very close relation to one another. She started out in the id and eventually worked her way through to the superego and finally ended in the ego state. It was her lust for a man that put her in the id state, her denial of the truth that allowed her to be in the superego state and her openness and love that placed her under the ego. All three cases show how closely the mind’s separate functions work.

Module 3 Assessing a Research Study Term Paper Example | Topics and Well Written Essays - 750 words

Module 3 Assessing a Research Study - Term Paper Example The research article uses materials that have been written, discussing the progress that has been made in the medical or healthcare sector, because of the use of EMR services and software, as a way of addressing the research question. Thus, the use of literature review is used to pursue and underscore the logical relationship between the dependent variable (return on investment analysis [ROI]) and independent variable (the emergence and use of EMR technology). 2. The sample size comprises healthcare organizations that deal in endocrinology, general surgery, orthopedics, cardiology, nephrology, podiatry, ophthalmology, urology, occupational medicine, dermatology, allergy and immunology, family practice and gastroenterology. 5. The article clearly illustrates how the returns on investments (ROI) have progressed before and after the advent or use of EMR services (reliability). This includes the presentation of actual figures, and percentages of increased productivity (validity). Two-way Analysis of Variance: it is clear that in the research, statistical data have been used to describe the manner in which a given categorical and independent variable affects different dependent variables. Indeed, the researcher, Dr. Sindhwani makes conclusion to the effect that the advent or use of EMR technology has radically increased all the aforementioned and tested elements of ROI in healthcare / medical institutions. Dr. Sindhwani as the researcher explores (remotely) the control of extraneous variables by acknowledging the place of other relatable technologies such as Smart-phones, their preponderance and an increased knack for accurate coding as factors that will spur onwards, EMR’s returns on investments. In the study, Dr. Sindhwani finds out that the use of EMR has significantly increased the tested elements of returns on investment (ROI). Particularly, Dr. Sindhwani is categorical that charting increased from 0.5 to 1 (50%

Market Segmentation and Product Positioning Term Paper

Market Segmentation and Product Positioning - Term Paper Example By the year 2006, the company has become amongst the most popular beer company in the African region (Smit, 2009). This was as a result of aggressive marketing of the beer by the company. This implied that advertising was exceedingly an essential factor for the success of the product. In fact, by the end of 2008, the beer was sold across the whole continent. Up to around 2010, most of the big cities and small town dwellers loved the beer at the bars and lodges. Frequently, joined by competitive alcoholic drinks, the beer has decreased in popularity. Currently, the company’s products are consumed at one billion beers rate per each single day. The company headquarter is located in Lusaka, in Zambia. It is a large firm and has many facilities and structures in different regions across the world. In addition, our company operates in seven nations, specifically in the northwest. The BERVET Company owns three manufacturing facilities with more than twenty five sales locations. The f irm is the largest beer company in the northwest region of Africa. The company offers a wide range of beer brands and services that makes it attractive to its customers. Some of the known brands include kegi, chura, and kiboko among many others. The company has several foundations and programs to assist in various services. For instance, the company has partnered with an LGC company which is an NGO to offer health services. We also support various corporate initiatives that empower girls and women around the region through economic support. We are also focused on providing services on sanitation and water to people who cannot access them. Vision The company is committed to continual renewal so that individuals, organizational structure, facilities, products, systems and our partnership remain dynamic. Mission statement BERVET produces high quality; alcoholic products with a vision of becoming the leading company in Africa by 2015. We are focusing on maintaining our customers as an a sset in expansion mission of the company. We are, therefore, committed to winning our customers loyalty to BERVET products forever. Market target BERVET targets the European market. The market segment for our company includes retailers, wholesalers, the private sector, the government and the individual customers. The company target customers by having specific lines in Europe. We expect our sales to be exceedingly high bearing in mind the variety and quality of our beer that we offer. This is because BERVET plans on reducing prices and opening more outlets for the drink in the region. We are targeting the big restraunts, bars, and lodges. However, there are some essential economic factors that will affect our products that include taxes, economic trends, and the rising energy prices. The legal factors include legislation and regulations on the operations of the business and government initiatives. Also, control from the government might affect the operations of the business. Environ mental factors might also affect the market, but some are uncontrollable like natural disasters and calamities such as fire, earthquakes, and floods. Having identified the market and the factors that might affect these will help in proper planning for strategies like price, promotion and distribution. We must come up with pricing strategies that will aid in profit maximization, current revenue maximization, and maximization of quantity, quality, and profit margin,

Operation management Essay Example | Topics and Well Written Essays - 2750 words

Operation management - Essay Example There has been increasing competition in the market place and organisations are looking for different methods to improve and enhance the overall productivity and performance.The output or final results are dependent on the efficiency and effectiveness of the operations. In this paper, an attempt has been made to understand the business operations and processes with the help of a case study. By exploring and analysing the business operations of the company presented in the case study it will become easy to understand the practical implications of the operations management tools and techniques and at the same time it will be easy to comprehend the different issues and challenges which are being faced by the organisations in the quest of improving the overall operations and activities of the organisation. Operations Management is the field of business which deals with managing the resources of the business that will be used to produce the output of the business (Schemenner, 1984). This field deals with the creation of a transformation system which takes the business inputs and uses the business process to produce the business output (Schonberger and Knod, 1991). This field also produces the controlling protocols for the transformation process (Gaither, 1984). These protocols consist of: layout strategy, operations strategy, and design strategy, which are augmented by a planning stage. Examples of most common operations include: retail operations, banking operations, manufacturing operations and etc (Flint, Larsson, Gammelgaard, and Mentzer, 2005). Operations management also help the company in the planning of the following aspects of the business (Chase and Aquilano, 1977): Capacity Inventory Supply Chain Quality Failure Prevention and Recovery By helping the company answer questions related to these domains, operations management enable the company to become more productive and effective in its operations and resource utilisation. Thereby, enhancing the companyâ €™s chances of survival in its marketplace and later go on to strengthen it place in its market (Fugate Mentzer, and Stank, 2010). One important element in this regard is of the planning and control. It is important for the organisations to carefully plan and control all operations and materials input in order to make sure that the final output or result is according to the demand and requirements in the market (Fitzsimmons, and Fitzsimmons, 2007). ANALYSING THE OPERATIONS OF A FROZEN VEGETABLE FACTORY: Business Analysis: Overview of the Company and Market: The company is operating in the frozen vegetable industry; it is backed by a strong specialist food group. As the group philosophy suggests that it focuses on speciality food segments, the factory’s operations are consistent with this philosophy. The factory produces a range of frozen vegetables like: carrots, cauliflowers, beans, peas, petit poi’s, broccoli, and sprouts. Most of the factory’s output cons ists of peas, which undergoes a very tedious process before a final version for the customers is available. The peas market is highly competitive and is dominated by five players. One of the players in this market is privately owned and is most of the time involved in changing the dynamics of the competition. It does this by reducing its profit margins, and thereby price, which leads to an increase in the number of customers going to this supplier of peas. However, major variables which influence the demand for peas include the quality and size of the harvest. The price of a

Outline the influence of corporate power on society and polities Research Paper

Outline the influence of corporate power on society and polities - Research Paper Example This research essay will analyze how corporations around the world are exerting their sway on the respective governments and societies, and the ways and means to prevent it and how to make them more socially accountable for their actions. Corporate authority and influence naturally are fostered along with commoditization. Corporate authority is employed to nourish policies that kindle commoditized economic development. As these governmental policies are prone to be tilting toward commoditization, corporations wield more or more power, thereby influencing corporate power at all levels towards supporting commoditization. Multinational companies are employing their power to persuade nations to minimize their tariffs, to remove the barriers to investments, to annul or eliminate the rules on repatriating profits out of countries in which they have invested and to lower the corporate tax rates and to offer incentives to foreign investors. The corporate laws around the world are being drafted in such a way that it facilitates to create an atmosphere which is favorable to amass capital and to incorporate and run companies (Costanza, 1999, p.224). With the extraordinary powers which corporations are possessing with through regulations, nowadays they have started to wield their sway on not only governments but also on societies in which they operate. This research essay will analyze the manner and style with which the corporations are exerting their power on the governments and societies, how to prevent them and to make them more socially responsible to the various stakeholders to whom they have to be accountable. The main aim of this research essay is to demonstrate how regulatory capture, i.e. how the interest of the public is sacrificed to the advantage of a corporation and how corporations around the world are exerting influence on the government or regulators.

Strategic Planning for Tourism in Abu Dhabi Essay

Strategic Planning for Tourism in Abu Dhabi - Essay Example However, the primary aim of this paper is to identify role of Masdar in improving the travel and tourism industry Masdar City and to develop a set of plausible and actionable strategic recommendations to the company that will help it in this respect. Currently, the company has five units i.e. Masdar City, Masdar Power, Masdar Carbon, Masdar Capital and Masdar Institute (Masdar-b, n.d). This paper will attempt to deal with the company’s Masdar City as this unit is engaged in infrastructural development that lead to the growth of the travel and tourism industry. This unit strives to develop a â€Å"global clean-technology cluster† called Masdar City which is situated â€Å"17km from downtown Abu Dhabi† (Masdar-c, n.d.). Masdar City can be developed as a major tourists’ destination. The company is aiming to develop this city backed with renewable energy and it is well designed with 40,000 residents. The primary essence of the Masdar City is on innovative tech nologies through R&D. United Arab Emirates (UAE) is now focusing on its tours and travel industry. The UAE Government has aimed to develop its important cities as a popular tourist attraction. For example, in Dubai, the leisure and hotel industry has grown significantly. The travel and tourism industry of Masdar City has a direct competition with Dubai. Moreover, other Gulf countries like Saudi Arab, Kuwait, and Oman etc are also trying to develop their travel and tourism industry. On the other hand, Middle East courtiers like Egypt are major tourist destinations and they are the major competitor of Masdar City in travel and tourism industry (Deulgaonkar, 2011). Tourism and travel industry primarily belong to global market as it targets entire global population. Therefore, the competition in travel and tourism industry is very high. 1.2. Communications Analysis The Masdar is highly respectable company of UAE and it has developed a higher corporate image in the market. The company is a focus-point for the entire nation as it is one the most developed renewable energy company. It has been continuously working for the development of the entire country especially for Abu Dhabi. One of the major tools for the company is its communicational and promotional activities. Its corporate website is critical medium for developing communication with its target audience. In order to develop ‘two-way’ communicational system, it has partnered with several social networking sites like Facebook, Twitter etc. It is also using its website for its advertising strategies and for delivering market signals. The organization generally communicates with target audience to spreading awareness regarding renewable energy, its projects, recent developments etc. Its communicational developments can play a very significantly role in developing the Masdar City as major tourists’ attraction. 1.3. Issue Analysis The Masdar has been successfully maintaining its public relation with its target audience through media partnering and through its corporate website. However, in order to develop the tourism industry of Masdar City in the global market, its communication is not unique and effective. It must be taken into consideration, that for competing in the global market, its communication must reach to global market.

Reaction Paper #1 Essay Example | Topics and Well Written Essays - 250 words

Reaction Paper #1 - Essay Example In the end an air hostess walks in and offers the boy an ice-cream which quells the competition after they decide they should have some to. This advertisement is a very good one as it manages to get it point across in a humorous and light hearted way. The message of the advert is based on the excellent experience one is able to gain from their services and they manage to depict it splendidly. They do this by depicting two famous personalities in two different sports who may argue but agree on one thing and that is the service of Qatar airlines. Their differences are seen by their struggle over the boy’s attention and their agreement is depicted when they both agree to get some ice scream. The use of the two stars is also a good strategy as it ensures that it catches the attention of their target audience which can be said to be fans of the two sports (that is, basketball and soccer). Using well known personalities is a good way of gaining the viewers attention in a short period of time (Arens 184). The various antics that the stars pull such as making balloon animals, give it an unexpected twist which can be used to keep the viewers interested. All in all, the advert keeps the viewers attention from the start to the finish and allows them to understand the point of the clip without putting much thought into it which is what a good advertisement is all about (Arens

Political ideas, under international relations Essay

Political ideas, under international relations - Essay Example He argues out that the diversity that existed in the human values defines the origins of political theories that extend to today’s political set up. A critical examination of the possible approaches of dealing with the diverse human values in a society leads to two kinds of liberty namely positive and negative liberty (Thorsen, 2004, p.6). The two concepts of liberty were initially considered to be closely related but later appeared to be taking different destinations. There have been efforts by philosophers to examine the main differences that exist between positive and negative liberty. There has also been a debate on whether one concept of liberty is superior to the other or not. Some of the rights and freedoms that we enjoy are those that are imposed by some legislation. Some other freedoms are enjoyed simply because there are no legislations that are contrary to them. However, it is important to note that freedom is freedom and regardless of its nature, it can be hazardou s if poorly misused or misinterpreted. Definitions By definition, positive freedom is that freedom that is guaranteed by some form of legislation. It refers to considering freedom as ‘the capacity for self rule, or self mastery especially on a collective level’ (Thorsen, 2004, p.6). ... The other one could be the right to own a property. Every one is absolutely entitled to the right to own property by most of the legal provisions worldwide. On the other hand, negative freedom is that freedom we enjoy because no kind of legislation forbids it. They are the kinds of freedoms that allow an individual to carry out his or her private affairs independently (Thorsen, 2004, p.6). This calls for the moral and ethical codes of conducts in the individual. For instance, there are particularly no legal provisions on how and whether one should enjoy his/her Christmas holidays. There are no provisions either that a bereaved family should have a memorial ceremony in honor of their deceased member. The celebrations in such occasions are carried on simply on the basis that there are no restrictions. In other words, a negative freedom is enjoyed at an individual’s own discretion. Arguments on positive liberty The kinds of governments that existed in the olden times were mainly a hereditary system in which one would have predefined successor, usually a son. In such cases, the rulers were mainly opposed to the ruled and what existed was a system of two conflicting forces with the ruled being unable to confront the rulers. In fact, the rulers often used their hereditary authority as weapons against complains from their people (Mill, 1859). There was thus a need to reduce the powers of the rulers and set certain limits beyond which the people were protected against such humiliations. This called for the need for the establishments of rights and freedom of the citizens in a given government. The rulers were forced to submit to such