Date: Thu, 29 Nov 2007 14:37

From: Tsachi Keren-Paz

Subject: Third party duress and battery

Dear colleagues,

I'm looking for authority or discussion on the question whether duress caused by third party and unknown to the defendant can be considered as vitiating the plaintiff's consent for purposes of the tort of battery. I recall reading an English or Canadian author (or case?, I think it was a casebook/textbook) suggesting that such duress would vitiate consent, but am not able to find it.

I would tend to argue that such duress should vitiate consent and be interested to hear members' views on that point as well.

Any idea?

Thanks
Tsachi

Dr. Tsachi Keren-Paz
School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 584358
http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm
Book "Torts, Egalitarianism and Distributive Justice"

----- Original Message -----
From: Jason Neyers
To: Charles Mitchell
Sent: Friday, November 23, 2007 5:45 PM
Subject: Re: RE: deceit: damages and account

Dear Charles:

The answer to your question depends, of course, on the principle underlying disgorgement. For those of us who buy the CJ justification for disgorgement there are good reasons why fraud will not support that remedy.

Also, the older cases you mention seem more consistent with the fraud destroying the underlying juristic reason for the transaction and therefore with restitution for unjust enrichment following rather than supporting for disgorgement for wrongs.

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