As a matter of logical analysis, the obligation to restore a benefit conferred under compulsion exercised by the defendant should be regarded, not as a primary quasi contractual obligation, but as a secondary obligation resulting from the breach of a primary obligation. That is to say, there ought to be recognized a universal obligation not to exercise duress over another to his damage, just as there is not to mislead another to his damage by false representations. For in both cases the duty is essentially the same - to refrain from injuring another by wrongfully creating a motive for action. If such were the law, the exercise of duress, like that of fraud (see post, Sec. 270), would not create a primary obligation, but would violate a preexisting primary obligation - in other words would not give rise to a quasi contract but would constitute a tort - and the resulting right of the injured party to restitution as well as his right to damages, would be secondary or remedial.

As a matter of fact, while obtaining goods or money by the exercise of actual force against the owner has been held a trespass, the accomplishment of the same purpose by threat or menace or by any milder form of compulsion has not been recognized as a tort. In the light of the law of deceit, false imprisonment by threats of force, and the procurement, by threats of force, of a refusal to contract, the omission is remarkable. It is in large measure due, probably, to the notion that the fact of consent (though improperly obtained) effects a transfer of title and thus absolves the transferee from the charge of violating a property right.

Although failing to recognize the obtainment of goods or money by duress (short of actual force) as a tort, the courts were of course not blind to the fact that the retention, without compensation, of goods or money so obtained may be unjust. In the course of time, therefore, the convenient remedy of assumpsit was granted. And since the obligation to make restitution is obviously not contractual in character, but rests solely upon the injustice (which must appear1) of permitting the retention of the benefit so obtained, it is properly treated as quasi contractual.