The Federation Press

Restitution - A New Perspective

Overview

Restitution: A new perspective provides a detailed critique of current and widely accepted theories seeking to unify the law of restitution on the basis of a principle of unjust enrichment.

Commencing with a brief history of restitution, the book proceeds to illustrate the diverse legal problems addressed by the law of restitution. The legal doctrines now collected under this heading are demonstrated to have fulfilled a gap-filling role in our law, much like the diverse doctrines of equity have done.

The book questions the underlying basis for unjust enrichment theories and demonstrates their inadequacy as descriptions and explanations of restitution. The book then sets out alternative methods of organising and rationalising the topics of restitution.

The approach adopted rejects an explanation of liability in restitution on the basis of a defendant’s unjust enrichment and thus challenges much of the current academic and judicial writing the in the field. Instead, the approach adopted is to emphasise the relevance of a defendant’s conduct in determining the nature and extent of any liability imposed.

Table of Contents

PART I

Venturing into the Restitution Thicket
General Introduction/ Terminology and subject matter: restitution and unjust enrichment/ The role of unjust enrichment in restitution/ Scope and purpose of this book

A Brief History of Restitution
Historical development of restitution/ The gap-filling and ameliorative role of restitution

The Meaning of Unjust Enrichment
Giving content to unjust enrichment / The meaning of “unjust”

The Failure of Unjust Enrichment
The failure of benefit-based analysis/ The false unity of unjust enrichment

PART II

A New Perspective on Restitution

Fault-Based Liability: Breach of Contract-Like or Tort-Like duties
Contract-like liability: the assumption of legal obligations/ Tort-like conduct and liability: infringing standards of acceptable conduct

Common Interests: The Consequences of Unprovided for Contingencies
The principle of “just sharing”/ The origins of the principle: general average contribution in maritime law/ The wider operation of the principle: the doctrine of contribution/ New applications of the principle: property disputes upon the breakdown of domestic relationships/ The uncertain status of the principle in contract: frustration of contracts

Justifiable Sacrifice: Allocating the Costs of Justifiable Conduct
The altruistic intervener/ The self-serving intervener

Innocent Recipients of Money and Services
Scope of subject matter/ Mistaken transactions/ Three-party transactions

Restitution: The Future

Table of Cases
Table of Statutes
Select Bibliography
Index

Of interest...