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Posted by / 09-Aug-2016 22:14

The requirements of common-law “duress” have been enlarged to include any wrongful acts that compel a person, such as a grantor of a deed, to manifest apparent assent to a transaction without volition or cause such fear as to preclude him from exercising free will and judgment in entering into a transaction.

For instance, although it’s quite settled that the copyright holder must establish the validity of the copyright as an element of its case in chief, courts have split on whether defendants’ challenges to copyright validity (such as lack of copyrightability, insufficient originality, multiple authorship, and the like) are offered to rebut the presumption of validity that arises from the issuance of a registration or constitute an affirmative defense to an infringement claim.

This conduct on the part of the respondent was plainly unlawful and - when the demand made on behalf of the applicant that the respondent desist was rebuffed - precipitated the launch of the application for the interim relief as sought in Part A of the Notice of Motion.

The respondent in its answering affidavit in Part A adopted an approach of deflection.

The Restatement of Contracts § 492 has defined duress as “(a) any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition, or (b) any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgment, if the threat was intended or should reasonably have been expected to operate as an inducement.” Duress that will provide grounds for avoiding such an agreement is a condition of mind produced by improper, external pressure or influence that practically destroys the free agency of a party and causes him or her to make a contract not of his or her own volition.

Duress may take the form of unlawfully inducing one to make a contract or to perform some other act against his own free will. duress, the party making the claim must make a convincing showing that the agreement was coerced by means of a wrongful threat such that the exercise of free will was precluded.” [C] –Proof Two factors must be proven to establish “duress” to set aside a prenuptial agreement: (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.

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Recently, however, courts have begun to make definitive precedent on these topics, aided by articulate and diligent counsel for the parties before them, and consensus is building among trial and appellate courts.