restitution, debt, duress, mistake, officious, recoverable, non-recoverable
The early history of restitution reveals that duress was relevant in two situations. In the first, one party compelled another to pay him money by reason of some threat. In the second situation, one party compelled another to pay him money which was in fact owed by a third party to the one exercising the compulsion. The former situation was a straight forward one, in which the party exercising the duress falsely or legitimately (though perhaps erroneously) caused the party subjected to the duress to accept that a debt existed between the two parties, or that the party exerting pressure ought to be paid, so as to avoid undesirable consequences. The latter situation was more complex, as there was never any question of a legitimate debt existing or arising between the party exerting pressure and the party paying. Whatever debt or obligation existed, or was believed to exist on the part of the one exerting pressure, also existed or was thought to exist between some third person and the party exerting the pressure. One distinguishing feature between these two situations was, and still is, with some important consequences, that in the two-party situation the issue of duress might be intertwined with the issue of mistake (so creating two potential sources of restitutionary recovery), whereas in the three-party situation the issue was thought to be one of bare duress, uncomplicated by questions of mistake. Another potentially vital distinction was that in the three-party situation the action of the party paying might give rise to the question whether his payment was "officious" (the term that has come to be used to mark the difference between a recoverable and a non-recoverable payment),? In the twoparty situation there could never be any question of officiousness. The sole criterion for recovery was whether the appropriate pressure had been exercised to justify recovery. These distinctions had, and still have, material effects upon the chances of restitutionary recovery. They do not detract from the fact that common to both situations was the problem of determining the nature of the duress that might form the basis for a successful action for restitution.
G HL Fridman, "Duress in the Canadian and English Law of Restitution:" (1987) 11:1 Dal LJ 47.