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The Law of Duress and Necessity: Crime, Tort, and Contract

The Law of Duress and Necessity: Crime, Tort, and Contract

Author: Nathan Tamblyn
Publisher: Routledge
ISBN: 9781138297999
Published In: September 2017
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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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 & Wales, Australia, New Zealand, Hong Kong, and Canada, as well as the American tortious defence of necessity.

CHAPTER 1 - TORT: INTIMIDATION & DURESS BY THREATS

1.1 Intimidation: English case law Summary

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 Abuse of rights Victorian case law

1.11 Defence of justification Procuring breach of contract, and justification Summary

1.12 Duress by threats as a tortious defence

1.13 Conclusions

CHAPTER 2 - CONTRACT: NECESSITY & UNCONSCIONABLE BARGAIN

2.1 English case law Summary

2.2 Australian case law Summary

2.3 New Zealand case law Summary

2.4 Hong Kong case law Summary

2.5 Canadian case law

2.6 The rationale for unconscionable bargain

2.7 The boundaries of unconscionable bargain Knowledge Weakness Substantive fairness Exploitation

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 Criminal prosecution Civil 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 & CRIME: NECESSITY

4.1 Private necessity in tort Summary

4.2 Private necessity in American tort law

4.3 Public necessity in tort Summary

4.4 The rationale for tortious necessity

4.5 Best interests intervention in crime and tort Summary

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

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