Compulsion and restitution : a historical and comparative study of the treatment of compulsion in Scottish private law with particular emphasis on its relevance to the law of restitution or unjustified enrichment
Compulsion can be defined as the improper application of harm or threats thereof to induce an act or omission. This thesis deals with the treatment of compulsion in Scottish private law, and particularly the law of "restitution" or unjustified enrichment. The applicable rules (especially those relating to force and fear and certain enrichment-based remedies) are first examined from a historical perspective, taking into account their Roman origins, reception and development in Scotland (particularly by the Institutional writers) and exposure to common law influences. Thereafter their relationship to Roman Dutch law (which parallels the Institutional era), South African law (which shares its mixed character) and German law (which represents a continuation of the civilian tradition) is examined. Against this background, the existing law is evaluated. It is shown that, although underdeveloped, the law is sufficiently rich in principle to cover a broad range of cases of compulsion. It is further argued that, within the context of the Scots law of unjustified enrichment, it is undesirable to regard compulsion as an "unjust factor" or ground for recovery. It is proposed that the recoverability of compelled transfers should rather be determined by asking whether they are retained without a legal ground. If undue, the transfer in principle should be recoverable. Recovery should only be excluded if, amongst others, the transferor acted in a way which indicated that the recipient could keep the transfer, or (in the case of an illegal or immoral transfer) if both parties were tainted by turpitude. Compulsion then plays the limited role of being but one consideration which indicates that these rules should not apply. If due, the transfer in principle should not be recoverable. Recovery should only be allowed if the compulsion was so serious that the transfer cannot be regarded as a valid act of fulfilment.