Restitution is a branch
of private law.
But which branch is
that? The major domains of private law are well settled. There is the
law on ownership ("property law"), on which agreements are enforceable
("the law of contract"), and on what counts as wrongdoing which
deserves compensation ("tort law" / "law of delict").
But it seems that in addition to those areas there is something
else - Which we call (lacking a better word) "restitution".
What should we make
of "restitution"? It has met with many reactions. It covers
many diverse cases. Do these cases have anything in common?
A persistent thought,
over perhaps 25 centuries of legal thought, has been that there must be
something which binds these many instances together. So many writers support
a theory of "unjust enrichment", which is supposed to unite
the various instances of restitution and give them purpose. But others
oppose this concept as an illusion, a hopeless hankering after harmony
where there is only a messy miscellany. Who is right? Or is there some
middle position, and if so, what? And should we be ashamed of restitution,
as awkward rubbish which we should sweep under the carpet of the law?
Or does the subject, on the contrary, have a rôle to make good the
deficiencies of other domains of the law, correcting the injustices which
the mechanical rules of other areas sometimes unwittingly do?
while academic and judicial argument is unceasing, it is pretty clear
at least what the subject-matter is. In simpler words: We see no end to
the argument, but at least we know what we are arguing about. So
"the law of restitution" certainly includes the law relating
to mistake, unfair pressure, tracing of stolen property, and recovery
of the proceeds of wrongdoing. It also covers more esoteric but nonetheless
important legal institutions: salvage, contribution, subrogation, constructive
trust. (And if you don't know what those words mean, then you are in the
majority of the human race - Nonetheless, ownership of millions of
£$¥ per day depend on the precise application of those
concepts.) It covers much more besides, though there is plenty of disagreement
as we reach the fringes.
is an important legal topic, and these pages are an attempt to convey
information about the issues. Suggestions for improvement are very welcome!
times in European history the prevention of enrichment through another's
loss has seemed an ideal that was almost attainable - in sixth-century
Byzantium, in eighteenth-century Germany, and in nineteenth-century
France. The result in each case was much confusion, for confusion
is sure to follow when an aspiration is phrased as a rule of law.
JP Dawson, Unjust Enrichment - A comparative analysis
(Boston, 1951) 108