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Sender:
Jonathon Moore
Date:
Tue, 23 Nov 1999 22:08:09
Re:
Archer - 2 questions

 

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 to this list.


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