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(E) IS LEGAL COMPULSION A GROUND OF RESTITUTION?

It has been suggested by Hilliard that legal compulsion should not be treated as a ground of restitution, because the cases considered in this section have nothing to do with the unjust enrichment principle.[1] The essence of this argument is that the cases which appear to involve legal compulsion are not actually concerned with whether the claimant’s intention to benefit the defendant has been vitiated by compulsion, but rather focus on whether it is appropriate to award a remedy to distribute fairly the burden of discharging the obligation. So, for example, Hilliard says that where a surety has discharged a debt owed by the defendant it is not appropriate to analyse the surety’s claim in terms of legal compulsion, because the surety voluntarily assumed the obligation. Hilliard prefers to describe the liability as involving the equitable distribution of liability.

It may, indeed, be more appropriate to describe the contribution cases in these terms, even though the statutory contribution scheme has been recognized as being founded on the unjust enrichment principle, particularly because of the judicial discretion to determine the extent of contribution with reference to what is just and equitable. But it is most definitely not a satisfactory explanation of the cases involving reimbursement, which were not considered by Hilliard. In such cases the claimant benefits the defendant as a result of pressure being imposed, which is most certainly on a par with the pressure imposed in cases involving duress of property or economic duress.3 0 But that ground of restitution is not available to the claimant because the threat is lawful. It is for that reason that a distinct ground of legal compulsion must be recognized in its own right, at least for the recoupment cases. As regards the contribution cases, it remains useful to analyse the claims in terms of unjust enrichment, because this focuses attention on the fact that we are concerned with obtaining restitution rather than indemnity and it follows that defences, such as change of position, will be applicable.

  • [1] 320 See p 212, above.
 
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