If a doctor tells a prospective patient that he will only treat his or her illness for a payment of $100 in a situation where the doctor is legally required to treat all patients without cost and the patient pays the $100 to secure the procedure, can the patient recover on economic duress grounds?

From what I have read thus far, most rights-based theorists of duress (Bigwood, Stewart) think that there is a claim since the patient's background normative entitlements include treatment, but on your analysis there is none since "threats to withhold beneifts are not threats of harm".

Jason Neyers

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 

Robert Stevens wrote:

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