Study On Issues Related To The Economic Duress

The merits of two typical cases about economic duress arouse this paper,with the questions about the development of the system of named Economic Duress, the constitutes of it and how to identify it. Based on the instruction of its historical development, analyze the cases and the fore mentioned questions. To further, we integrate this system with the relevant provisions of domestic laws and cases to analyze its significance in China and how to learn from it. This paper is divided into four main chapters.Chapter one introduces the concept of Duress on international commercial law. Economic Duress was established after Personal Stress and Cargo Stress on common laws countries. This paper investigates the duress lawsuit which includes strict contract law and integrity contract on Roman Law, and investigate the duress lawsuit on Common Law and Civil Law. The different elements and how to identify duress in different law systems will also be talked, which includes the third person stress and the violations of the rights issued. Then we introduce the elements of intention and analyze the theory of causal relationship. The effectiveness of contracts made under duress in different countries is investigated. Last we introduce and comment the terms in the Principles of International Commercial Contracts.Chapter two introduces the system of Economic Duress. To investigate the system’s development, after a brief discussion of the rise and development of the Common Law and Equity, we introduce the two significant standards of identifying Economic Duress and propose two cases, which are the protest and deny from contracting partner threatened. It also studies the two standards. At last, we compare some related concepts with Economic Duress, which are Undue Influence、Profiteering Behavior and Commercial Pressure. This paper analyzes the constitution of Undue Influence and some standards of its application on trials of U. S. Courts, and compare it with Economic Duress through a case.The second concept is compared with Unconscionability and Position of Vulnerability under our domestic actual situation. The third concept is compared in factos、the scopes and founders.Chapter three analyzes the two cases more in-depth. This paper compares their details and points, which includes opinions from courts and arbitrations; comprehend the opinions. Further more, it analyzes the legality of means、the negative confidence and hostility of the menace. When analyzing the effectiveness of the second contract, it analyzes the relationship between rationality and lawless threat and propose to use the standard called "reasonable person" to judge. By proposing questions about avoiding being a profitable opportunity and stressing fairness, it concludes the necessity of build the system of Economic Duress. Then, it elaborates the five important elements to identify Economic Duress, which are the degree、the legitimacy of the means、the fear、the consequence of contracts and avoiding the abuse of power. Degree means the coerced one’s free will is suppressed and the nature of contract is changed. The second element means the legitimate means are not needed, while the association between means and non-freedom is necessary. Fear, discuss there no economic duress in the case of the absence of fear and stress can be awe, and not all of the contract conducted under fear could get a revocation, the relationship has to be discussed. The result of contract must be intentional unconscionability. Finally, it emphasizes that there are kinds of coerces manners in commercial activities today, we should have a good grasp of elements of economic duress.Chapter four combines the system with several domestic cases which arouse questions like how to determinate wrongfulness and causal link、validity of the contract、identify economic duress in market activities, and combines our domestic law especially the Contract Law to analyze the worth of this system to our domestic law. Firstly, it discusses the lacking of provision about intention flaws, which means that the elements of coerce are intention, specific coercion, causality and illegality. To the questions above, it discusses define, illegality, causal link, economic coercion and protection of bias in those cases. Then, it proposes that we should apply this system in our domestic laws and use it in resolving the disputes of commercial activities. The necessity is we really have too much to improve on theory and practice, and many countries and areas have drawn this system, we could also establish it to maintain the market economic order. The feasibility is also discussed here, which is how to deal it with the provisions of position of vulnerability and unconscionability. Finally, the paper suggests that the Supreme Court introduce judicial interpretation could be a appropriate manner. Clarifying its conditions and results will make it play a better role.