ABSTRACT
The English law of unjust enrichment deals with situations where it is unjust for someone to receive a benefit without paying for it. Duress is one of the unjust factors that allows for restitution.
The recent approach of the court assumes the same test for duress in contract and unjust enrichment as in CTN Cash and Carry. This is problematic in cases where there are no valid contracts in play. First, this obscures the normative foundation of unjust enrichment. The higher threshold for establishing duress in contract law is justified by its own principles and aims which are not present in unjust enrichment. Second, the existing grounds of recovery that centre on the application of pressure to the claimant and third-party cases in duress show that duress in unjust enrichment is primarily claimant-sided. It is not concerned with the reprehensible conduct of the defendant.
This article argues for a lower threshold to establish duress in unjust enrichment. The distinction between recovery of contractual and non-contractual payments on grounds of duress should be reinstated, as in earlier authorities such as Skeate v Beale. The rigid and overly complicated categorisation of duress in contract law should not be followed in unjust enrichment. Instead, this article argues for a unifying principle that centres on the question of whether the claimant made the payment under illegitimate pressure, but not the degree of the defendant’s reprehensibility. This claimant-sided approach is readily analogisable with existing unjust factors, including the archetypal unjust factor of mistake, and the other few grounds of recovery that centre on the application of pressure to the claimant.
Chang, Charmaine, When a Contract Falls Short: A Special Case for Restitution Under Duress in Unjust Enrichment (April 8, 2024), [2024] 6 City Law Review 30.
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