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RDG
online Restitution Discussion Group Archives |
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Andrew Dickinson
writes:
Without wishing to prolong the debate, I have two questions
for the main protagonists: 2. For Jonathon Moore, may I ask why you have deserted
the prefix "illegitimate" before "compulsion"? For me, this is a word
whose meaning and content can only be derived from the authorities,
which distinguish between forms of compulsion (or pressure) that the
law regards as acceptable (e.g. most threats to sue) and forms of compulsion
that the law regards as unacceptable (e.g. gun to head) giving rise
to legal consequences including the obligation to restore benefits conferred
under the compulsion. To say that the reason for ordering Mr Archer
to restore the money is "compulsion" would seem to tell only half the
story - it begs the question as to where the line must be drawn - the
term "illegitimate" at least emphasises that there is a line to be drawn
but does not (on its own) tell us where to place it. I quite agree that saying that the unjust factor is compulsion
does not draw the line very clearly between pressure which does, and pressure
which does not, give rise to a right in unjust enrichment. I was persuaded
to drop the word 'illegitimate' because, in relation to a claim in unjust
enrichment (as opposed to a civil wrong), it seems strange to use the
word 'illegitimate' in relation to pressure which was lawful. Even if
the claim in unjust enrichment depends on the judgment first being set
aside, it still may not be appropriate to describe the unjust factor as
illegitimate pressure. On the other hand, at present I would cling to
'compulsion' simply because G&J put it there (p 457), citing a case which
seems to support that stance (ie Dr Drury's Case). If that is right, then
perhaps we should say that this is one of those relatively rare cases
of lawful compulsion which gives a right to restitution of unjust enrichment.
But I am the first to admit that other explanations, most of which I
regard as very respectable, have also been proffered by contributions
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