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DEFENDANT-ORIENTED GROUNDS OF RESTITUTION

Grounds of restitution can be considered to be defendant-oriented if it is necessary to consider the defendant’s conduct or intention when considering whether the defendant received a benefit in circumstances of injustice.

(A) EXPLOITATION

The best examples of defendant-oriented grounds of restitution are those which are founded on the principle of exploitation, such as undue influence and unconscionable conduct.[1] Whether these grounds of restitution are defendant-oriented has proved to be a particularly controversial matter, since it has sometimes been suggested that, where the defendant has exploited the claimant, the claimant’s intention to benefit the defendant can be considered to be vitiated.[2] The better view is that these grounds of restitution are both claimant- and defendant-oriented, because the effect of the exploitation is to vitiate the claimant’s intention, but this requires proof that the defendant had actually exploited the claimant’s weaker position or can be presumed to have done so. The same is also true of those grounds of restitution which are founded on compulsion, which require proof that the defendant compelled the claimant to transfer a benefit.

  • [1] 17 See, for example, PBH Birks, An Introduction to the Law of Restitution (rev edn, Oxford: Clarendon Press,
  • [2] 1989), ch 8; C Mitchell, P Mitchell, and S Watterson (eds), Goff and Jones: The Law of Unjust Enrichment (8th
 
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