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Allan Axelrod
Thu, 18 Dec 1997 12:25:18 -0500
failed contracts and restitution


On Thu, 18 Dec 1997, Steve Hedley wrote:

At 09:03 18/12/97 -0500, Allan Axelrod wrote:

your note confirms my nervousness about participating in this group upon which i have stumbled and in which i seem to be the only american participant

Don't worry, we don't bite!

we're like animals here, and it's so nice to be with a group of friendly gentle controversialists such as yourselves

let me repeat and amplify:

our discussion has been [mostly] taxonomic:

we discover clumps of civil law-suits [ranging from inadvertently taking possession of another's personal property to intentional maiming] in which the recovery is based on plaintiff's loss and we give a group name : tort

we discover clumps of lawsuits [more coherent factually] in which plaintiff's recovery is measured by promise, expectations, bargain and have a group name contract

we have a clump of cases [ranging widely again from mistake through defective contract situations such as duress or plaintiff-in-breach] where the measure of recovery is defendant's gain: i at least learned to call this 'restitution'

and why not this last classifying word? you say because the several cases don't have enough in common to require or legitimate a label, and so you want to squeeze the cases in what i have called the third category back into the other two, which then will no longer be differentiated by type of remedy but by some other idea

why deprive the world of a taxonomy of law-suits classified by remedy measure? remedy measure is certainly important in practice and for clients etc etc

perhaps you fear that the naming of a category 'unjust enrichment' entailing a remedy 'restitution' will alter substantive results in an unattractive way?? which thought brings me to your last paragraph [although i hope i have paid sufficient attention to those in between] which responds to my last paragraph next printed

one of our leading cases---last century---- involved an employee who was to have been paid at the end of a one-year employment contract, but who materially breached after seven months work the decision was highly controversial but the employee was awarded a quantum meruit and we were taught that these plaintiff-in breach cases used a restitutionary measure of compensation in that the recovery was not based on the contract wage rate

That very example has been the subject of much controversy in this jurisdiction, particularly over what the measure should be. Whether the contract rate or some other rate is appropriate is an open question, on which there is no lack of opinions.

with respect that seems to me to be quite irrelevant to our discussion: if the law prescribes a contract measure then I promise not to call it a restitution case and if you accept that there is a category 'unjust enrichment' and a measure 'restitution' i promise that my sense of what is or is not 'unjust' will not be influenced by the existence of the named category

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