Fora consumer to be able to claim under duress, it requires a contract that has anelement of threat. The threat must be independently illegal.1 It offers the remedy of rescissionand is usually confined between business to business transactions.
The problemis there is no protection for consumers when aggressive selling or enforcementis used. It has very limited scope where it cannot be used even to catch obstructivebehaviour such as not answering consumer’s calls. There is no rescission ifpre-contractual threats were made, causing expenditure and in cases of threatsused in repayment of debt. There are also no damages available for economic lossesor distress.
Theequitable doctrine of undue influence requires a special relationship of ‘trustand confidence’ which has been abused, leading to an uninformed decision madeby the person who trusted.2 In Allcard v Skinner3,it was held although there was undue influence, she could not recover due to herdelay. It will materially affect whether or not someone can obtain relief if theyneglect their rights knowingly.4 This rule is usually usedto protect businesses from liability and is unlikely to establish in businessto consumer transactions. There is no damages available for distress.
TheCPUT has different categories of prohibition. Schedule 15 contains31 examples of conduct which are the black list of prohibited practices. Reg.5Para 2 sets out when action would be considered as misleading. This provisionis wider than misrepresentation as it covers both existing fact and futurestatements.6It offers higher protection as it covers situations even if it is only likelyto deceive.7The remedies available are unwinding which also applies to situations of no contract,damages, and discount which was not claimable under misrepresentation.
Reg.7Para 1 sets out when commercial practices are deemed as aggressive. Para 2determines when it uses harassment, coercion or undue influence. This coverssimilar things covered under duress and undue influence but its scope is muchbroader.
There is no need for an illegal act to break a contract or a need forspecial relationship. Examples of aggressive sales are pressure selling and consistentphone calls at home or work to the consumer. The remedies available are unwind,damages and discount. Consumers can also claim for distress.TheUnfair Commercial Practices Directive (UCPD) 20058 concerns unfair businesspractices in EU law. It requires member states to control these practicesthrough public enforcement.
It is implemented in the UK by the CPUT. The UCPDdoes not require that there be private law rights for those affected by thesepractices although it does not prevent Member States from giving them.9Most academics assert that is it necessary to introduce private law rightsbased on the UCPD as inconsistency between the public and private realm is confusing.The Law Commission considered the issue, which lead to the CPR 2014.101 ibid 3892 M Furmston, (n 30) 4003 Allcard v Skinner (1887)36 Ch D 1454 M Furmston, (n 30) 4015 Schedule 1, CPUT 20086 Regulation 5, Para 4(c) CPUT 20087 Regulation 5, Para 2(a) CPUT 20088 Unfair Commercial Practices Directive 2005/29/EC9 ibid, Art 3(2) 10 Law Com report (Consumer Redressfor Misleading and Aggressive Practices, (Law Com No 332, 2012), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/236079/8323.pdf