The Federation Press

The Varieties of Restitution


The law of restitution is commonly described in terms of a unifying principle of ‘unjust enrichment at the plaintiff’s expense’. Jackman challenges that view, revealing that much of the law of restitution does not concern cases where the defendant has been ‘enriched’ or where the plaintiff has suffered ‘expense’. Demonstrating that there are several distinct concepts of ‘injustice’ at stake, he then identifies three fundamentally distinct categories of legal thought in this area:

  • the reversal of non-voluntary transactions
  • the fulfilment of non-contractual promises and
  • the protection of the private legal facilities of proprietary rights and fiduciary relationships.

In so doing, the author highlights the central and disparate principles of restitution so often masked by the concern for uniformity.

Table of Contents


Mistaken Payments
Non-contractual mistakes
Is there a right to restitution for the mistaken provision of benefits in kind?
Contractual mistakes
Interest as an incident of restitution

Duress, Undue Influence and Unconscionable Bargains

Payments Made on a Total Failure of Consideration
Mistake in contract at common law
Fundamental breach of contract
Can the party in breach recover payments?
Total failure of consideration of non-contractual payments
Does the doctrine of total failure of consideration apply to benefits in kind?

Voluntary Provision of Benefits in Kind
Non-contractual promises
Unenforceable and void contracts
Anticipated contracts
Contracts discharged by breach of frustration
Voluntary payment of another’s liabilities

Non-voluntary Provision of Benefits in Kind
Compulsory payment of another’s legal liability
Necessitous intervention

Restitution for Wrongs
The injustice of the enrichment
Property and proprietary torts
Relationships of trust and confidence
Breach of contract

Proprietary Claims and Proprietary Remedies
Proprietary claims at common law
Entitlement to proprietary remedies in equity
The rules for tracing in equity

Change of position
Restitutio in integrum
A defence of "passing on" the loss?

Table of Cases/ Table of Statutes/ Index

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