Many writers, starting with Birks I think, divided the law of duress into

threats of wrongs and lawful threats, the former (usually) grounding

restitution, the latter (usually) not. This would be, I suppose, loosely

analogous to a claim for loss caused by unlawful threats. Such writers

then have to construct theories as to why the law sometimes says threats

of wrongs are insufficient and why the law also sometimes says that lawful

threats are sufficient. Any analogy with the claim for loss caused by

intimidation will (obviously) not help in this regard.

I think this division is a mistake. It is threats of harm which suffice to

ground restitution, regardless of whether the harm would be lawful if

actually inflicted.

So analogising from the law of intimidation, where what is threatened must

necessarily be wrongful and where that is a sufficient condition of

actionability for loss suffered is, I think, positively misleading. This

seems to me to be an unsurprising conclusion because a claim for

restitution for a gain transferred is not the same sort of claim as a one

for loss suffered. Bicycles and cheese.

best

Rob

> I'm not sure that analogies between duress and tortious wrongdoing are

> completely misplaced.

>

> The tort of intimidation was "invented" by Salmond in 1907. Later

> cases on two party and three party intimidation have relied on

> Salmond's formulation. Salmond himself relied on Hawkins J's advice in

> Allen v Flood, which suggested that such a tort existed by reference

> to the criminal law of menaces and the action for duress. Although

> Jason was concerned with conspiracy, not intimidation, the latter

> shows that the law of torts is not wholly insulated from the action

> for restitution arising from duress. It would be surprising if a tort

> which was itself recognised by analogy with duress should not pay heed

> in its development to the evolution of duress.

>

> Best wishes

>

> James

>

> On 20 April 2010 08:10, Robert Stevens <robert.stevens@ucl.ac.uk> wrote:

>>

>> A gain transferred as a result of threats of harm (even if lawful harm)

>> is

>> recoverable. (Threats to withhold beneifts are not threats of harm.)

>> Loss

>> which is not wrongfully inflicted is not recoverable, even where

>> intentionally and pointlessly caused.

>>

>> I am not sure I understand the question. They are just not the same sort

>> of claim at all. Duress is nothing to do with wrongdoing. It is a bit

>> like

>> asking what explains the difference between bicycles and cheese.

>> best

>> Rob

>>

>>

>>> Colleagues:

>>>

>>> I was wondering if anyone had a view on the following. I am trying to

>>> pinpoint the difference on a conceptual level between competition as

>>> envisaged in a case like Mogul Steamships and extortion/lawful act

>>> duress.  In a case like Mogul the defendant injures someone else

>>> financially in order to bring about a profit for himself and the court

>>> concludes that so long as the defendant's ultimate gain is primary goal

>>> then there is no liability. In an extortion case, the defendant

>>> threatens to injure someone else financially in order to bring about a

>>> profit for himself yet this is always a wrong even if the defendant's

>>> primary goal is his or her gain.  What explains the difference between

>>> the two? Does anyone have any thoughts?

>>>

>>> Sincerely,

>>>

>>> --

>>> Jason Neyers

>>> Associate Professor of Law

>>> Faculty of Law

>>> University of Western Ontario

>>> N6A 3K7

>>> (519) 661-2111 x. 88435

>>>

>>>

>>

>>

>> --

>> Robert Stevens

>> Professor of Commercial Law

>> University College London

>>

>>

>

--

Robert Stevens

Professor of Commercial Law

University College London