Dures, Family Law and the Coherent Legal System

DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01988.x
Publication Date01 Nov 1994
AuthorA. Bradney
November
1994)
Duress, Family
Law
and the Coherent Legal System
exercise the right of set-off,
ie
the right could be exercised against monies
presently due
or
those due in the future. The judge had also held that monies paid
to the franchisor for advertising services represented a trust fund against which set-
off could not be exercised. Dillon
LJ
disagreed with this, since part of the
defendant’s complaint related to the misappropriation of the fund to further the
franchisor’s own business of commercial picture framing from which it had
purported to exclude the defendant (and indeed, as mentioned above, it had
allegedly diverted such work away from him). The Court also refused to limit the
set-off to the present estimated value of the counterclaim, since
it
might well turn
out after discovery that the counterclaim exceeded the plaintiffs claim.
In conclusion, the franchisor must, of course, protect its cashflow as far as
possible, but in the light of the above it is unlikely to achieve this objective simply
by virtue of a ‘no set-off clause when itself guilty of conduct which would support
an application for unconditional leave to defend an
0
14
writ. The consequence of
this is that such a ‘no set-off provision adds little to a well-drafted provision
making the franchise fees payable on ‘Gross Turnover,’ which is calculated
without deduction of the matters specified. A lesson
of
Fastframe
Lrd
v
Lohinski
may also be that it is inadvisable to draft virtually completely one-sided agreements
favouring the franchisor.
I4
Draftsmen should consider from the outset what would
be reasonable from the franchisee’s point of view.
Duress, Family Law and the Coherent Legal System
A.
Bradney
*
Introduction
English family law with regard to pleading duress when seeking to obtain a decree
of nullity is a conceptual muddle. The first problem is that there are conflicting
authorities in the Court of Appeal. In one longstanding line of authority, the court
has held that for there, to be duress there must be a threat to the life, limb
or
liberty
of the person concerned.l However, in its most recent analysis of the subject,
Hiruni
v
Hiruni,
the Court of Appeal held that any threat which
in
fact overbore
the will of the subject could amount to duress, whether it was a threat to life, limb
and liberty or not.2 In this latter case, no mention was made of the previous line
of authority. This means that future courts can choose which authority to follow
14
The case
of
Elliorr
v
Wheeldon, The Times,
12
March
1992,
suggests that where (as will usually be the
case) an agreement envisages co-operation between the franchisor and the franchisees in developing
the system, the franchisor will owe the franchisees a duty not to act in such a way as to increase their
liabilities except in good faith and that clauses which give the franchisor a virtually unfettered
discretion, as was the case with the
Fastfame
agreements, may be subject to this duty. The existence
of
such an unfettered discretion could, moreover, as
Fastj’rame
v
Lohinski
also suggests, be part
of
thc
context against which the reasonableness of such a clause will be considered.
*Faculty
of
Law, University of Leicester.
I
am grateful
to
my colleagues, Dr Andrcw Chon and Dr Nelson Enonchong, for their comments on an
earlier draft of this article.
1
am responsible for such faults as remain.
Buckland
v
Buckland
[I9681
P
286;
Sin&
v
Singh
[
19711
P
226;
Singh
v
Kuur
(1981)
I
I
Fain Law
152.
1
2 (1983)
4
FLR
232
8
The
Modern
Law
Review
Limilcd
1994
963

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