![]() The claimant will be expected to act reasonably, given the alternatives put to him. It will depend on the circumstances as to whether there is operative coercion, which causes the claimant to pay or to do what the threat required, typically payment of monies. The claimant’s response must be reasonable and proportionate. Public bodies must act in accordance with their constitutive law in accordance with fundamental principle that that they are bound by and must conform with the rule of law. It is arguable that threats by public authorities to do things outside their powers, thereby requiring benefits and payments is unlawful for this purpose. ![]() It is arguable that threats to do things that are technically lawful such as terminate long-standing contractual relationships lawfully, may given rise to right of recovery and restitution, if it amounts to an abuse. The litigation must be conducted in good faith. This is necessary in the interests of the finality of litigation. Settlements and payments made under threat of litigation, express or implied, are usually irrecoverable. However, it appears that it is not permissible to threaten criminal sanction in order to seek more compensation than is lawfully due. Seeking reasonable compensation for a civil wrong is permissible. Demanding monies with menaces may be unlawful, notwithstanding that what is threatened may be lawfully done.Īpart from the above circumstances, a person is generally entitled to threaten to do anything which he might lawfully do. This arises where the menaces being akin to those which constitute an unlawful demand / blackmail. Threats to unlawfully involve the criminal process may be deemed illegitimate for this purpose, even if person who so threatens is lawfully entitled to do so. Restitution may be allowed for payments and benefits conferred which were tainted by a duress and undue influence, notwithstanding the absence of specific illegality. There must be coercion which causes the claimant to act as he does. The fact that something in the circumstances is contrary to statute or is in some way unlawful is not of itself sufficient. Other than in exceptional circumstances where there is an abuse of a dominant position, there will be no unlawful element. ![]() A person is entitled not to do business with another. Threats not to do business in the future do not appear to be sufficient. There is authority for the proposition industrial action that is immunised under the Industrial Relations Act, is not unlawful for this purpose. There must usually be some element of unlawfulness which is sufficiently coercive in the circumstances so as to affect the claimant’s freedom of actions. It appears that a threat of breach of trust or other unlawful act may be sufficient to allow restitution. Unlawful or further payments insisted on by bodies which already owe statutory obligation to render a service, to perform that service have been the subject to recoupment in older cases, although it is not clear to what extent actual duress was in fact a factor. Many of the cases involve a refusal to perform a contract where no alternative is available, unless more monies than the contract provides for, are paid.ĭemands by public authorities contrary to law may be the subject of restitution at common law. There is significant authority for the proposition that monies paid under a threat of breach of contract is recoverable by way of restitution. ![]() It appears on balance that threats of breach of contract, provided they are sufficiently coercive may give right to restitution. The fact that the person concerned believed that his had a right to make the threat, does not affect the right of restitution. It may arise, for example, in the case of money paid to release goods wrongfully detained. The position in respect of lower level and more indirect duress is less clear.For the most part, economic or circumstantial distress is not enough to invalidate a contract.Ī threat to commit a civil wrong, presumptively constitutes duress and may potentially allow recovery of benefits transferred under the apparent contract. It may range ranging from threats or actual direct unlawful violence to the application of other, less direct unlawful pressures.ĭuress involving the threat of violence clearly negates consent and contracts thereby entered. Duress covers a range of types of pressure and influence.
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