Whereas the definition of mistake as a ground of restitution differs depending on whether it is necessary to set aside a contract before the claimant can obtain restitution,[1] this is not the case with those grounds of restitution which are founded on compulsion. These grounds are defined in exactly the same way regardless of whether the claimant wishes to bring a pure restitutionary claim or first needs to set aside a contract for compulsion before seeking restitutionary relief.[2] This is presumably because, unlike cases where the claimant entered into a contract as a result of a spontaneous mistake but like cases where the claimant entered into a contract as a result of an induced mistake, the defendant’s conduct in compelling the claimant to enter into a contract is such that it is easier to set the contract aside. Consequently, the grounds of restitution which establish that the claimant’s intention to transfer a benefit to the defendant was vitiated by the compulsion, can also be used to show that the claimant did not intend to contract with the defendant, without any different definition of compulsion or the specific grounds of restitution.

Even though the grounds of restitution are the same, it is still necessary to distinguish between those cases where the claimant transferred a benefit to the defendant pursuant to a contract and those cases where there was no contract in existence for two reasons.

  • [1] for the purposes of defining economic duress, whether the claimant had agreed to pay money to the defendant
  • [2] or had simply paid the money unilaterally, since the same definition of duress applied.
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