Full Description
The language of duress and necessity is found in crime, tort and contract. This book explores those pleas, in both case law and theory, across the subject boundaries, and across jurisdictions. In doing so, it seeks to identify the lessons which each area of law can learn from the others, and to tease out common themes while demarcating important differences. The overall outcome is a law more coherent and understood in sharper detail.
This book considers the law of England and Wales, Australia, New Zealand, Hong Kong and Canada, as well as the American tortious defence of necessity.
Contents
PROLOGUE
Comparative law
Methodology
CHAPTER 1 - TORT: INTIMIDATION AND DURESS BY THREATS
1.1 Intimidation: English case law
1.2 New Zealand case law
1.3 Australian case law
1.4 Canadian case law
1.5 Hong Kong case law
1.6 Intimidation and three-party cases
1.7 The rationale for a tort of intimidation
1.8 Unlawful acts
1.9 Threatened breach of contract
1.10 Threats of lawful action
1.11 Defence of justification
1.12 Duress by threats as a tortious defence
1.13 Conclusions
CHAPTER 2 - CONTRACT: NECESSITY AND UNCONSCIONABLE BARGAIN
2.1 English case law
2.2 Australian case law
2.3 New Zealand case law
2.4 Hong Kong case law
2.5 Canadian case law
2.6 The rationale for unconscionable bargain
2.7 The boundaries of unconscionable bargain
2.8 Conclusions
CHAPTER 3 - CONTRACT: DURESS
3.1 The test for contractual duress
3.2 Threats to breach contract
3.3 Lawful act duress
3.4 Threats of prosecution and litigation
3.5 Causation, and burden of proof
3.6 Australian case law
3.7 New Zealand case law
3.8 Hong Kong case law
3.9 Canadian case law
3.10 The rationale for contractual duress
3.11 The relationship with undue influence
3.12 Conclusions
CHAPTER 4 - TORT AND CRIME: NECESSITY
4.1 Private necessity in tort
4.2 Private necessity in American tort law
4.3 Public necessity in tort
4.4 The rationale for tortious necessity
4.5 Best interests intervention in crime and tort
4.6 Lesser evil necessity in crime and tort
4.7 Conclusions
CHAPTER 5 - CRIMINAL LAW: DURESS
5.1 Types of threat
5.2 Pain and internal causes
5.3 Threats to whom?
5.4 Perception and response
5.5 Imminence and alternative action
5.6 Laying oneself open to duress
5.7 A defence to which crimes?
5.8 Canadian law
5.9 New Zealand law
5.10 Australian law
5.11 The rationale for criminal duress
5.12 An objective standard?
5.13 Conclusions
EPILOGUE
The language of duress and necessity
Areas of overlap
Case law and theory: the key details
Overall conclusions
