EXPLOITATION

GENERAL PRINCIPLES

(A) THE ESSENCE OF EXPLOITATION

It was seen in the last chapter that compulsion is not a ground of restitution in its own right but is a general principle on which a number of specific grounds of restitution are founded. The same is true of exploitation. Exploitation is a useful general principle to recognize, since it enables a number of disparate grounds of restitution to be treated together. These grounds have the common characteristic that the defendant has actually taken advantage of the claimant’s weaker position in some way, or can at least be presumed to have taken advantage of the claimant. The essence of exploitation consequently involves the actual or potential abuse of power or influence by the defendant. The grounds of restitution which are founded on the principle of exploitation can be considered to be both claimant- and defendant-oriented. They are primarily claimant- oriented, in the sense that the effect of the actual or presumed exploitation means that the claimant’s intent to transfer a benefit to the defendant can be treated as vitiated. But the grounds of restitution are also defendant-oriented, in the sense that it is the actual or presumed conduct of the defendant which constitutes the exploitation of the claimant’s weaker position.[1]

  • [1] Sometimes, however, the exploitation might come from a third party. See p 269, below.
 
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