The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could not be granted since restitution was no longer possible.
Held: Rescision remained available as a possibility. There was no special common law rule. Practical justice did not require restitution as the primary objective. It would be surprising if a court could find undue influence or other misbehaviour, but not provide a remedy. The precise remedy could not be known until the facts were known.
Judges:
Waller LJ, Sedley LJ, Carnwath LJ
Citations:
Times 14-May-2007, [2007] EWCA Civ 291, [2007] 3 WLR 849, [2008] QB 195, [2007] 3 All ER 478, [2007] 2 Lloyd’s Rep 56
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Cited – Erlanger v New Sombrero Phosphate Company HL 31-Jul-1878
Rescission needs Restitutio in Integrum
A syndicate, of which Erlanger (Orse Erlinger) was the head, purchased from an insolvent company an island, said to contain valuable mines of phosphates. Erlanger, who managed the purchase, prepared to get up a company to take over the island and . .
Cited – Barton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
Cited – The Western Bank of Scotland v Addie HL 1867
Rescission of a share purchase agreement was sought on the grounds of fraudulent misrepresentation.
Held: Lord Cranworth said: ‘Relief under the first head, which is what in Scotland is designated restitutio in integrum, can only be had where . .
Cited – Beximco Pharmaceuticals Ltd, Bangladesh Export Import Co Ltd, Rahman,and others v Shamil Bank of Bahrain Ec CA 28-Jan-2004
A contract provided that it was to be governed by the law of England and Wales, but ‘subject to the principles of the Glorious Sharia’a’ It was a loan agreement made under the system of Morabha. The defendant said that since the agreements charged . .
Cited – Hulton v Hulton CA 1917
A wife sought to rescind a separation deed for fraudulent misrepresentation. As part of the terms of the deed the litigation documents had been destroyed.
Held: This was not a bar to rescission, because: ‘it was the defendant who was anxious . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Al Midani v Al Midani 1999
An arbitration agreement was entered into by the heirs of a wealthy Saudi by which they submitted a dispute as to their late father’s estate to a named arbitrator.
Held: That agreement was probably governed by either Sharia law or such law as . .
Cited – O’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
See Also – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Cited by:
Cited – Crystal Palace FC (2000) Ltd v Dowie QBD 14-Jun-2007
The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 07 September 2022; Ref: scu.250691