Counter-restitution for rescission

Halpern and another v Halpern and others (2) CA TLR 14 May

The defendants alleged that their consent to a compromise agreement was procured by improper pressure. Whether this was characterised as duress or undue influence, it would be surprising if the law could not provide a suitable remedy. The form of the remedy, whether equitable or tortious, was a matter which could not sensibly be decided until the facts were known about the nature of the alleged improper pressure. The judge had been wrong in determining that a party could not avoid a contract procured by duress in circumstances where he could not offer the other party substantial restitution. There is not a special common law rule for duress. For the purposes of practical justice, the primary objective might not always need to be to restore both parties to their previous position. Rescission for duress should be no different in principle from rescission or other vitiating factors. The practical effect of counter-restitution would depend on the circumstances of the case.