Of course it's just a tree.  What does it look like ?
RDG online
Restitution Discussion Group Archives

front page

What's new?

Another tree!

Archive front page
















Another tree!

<== Previous message      Back to index      Next message ==>
Allan Axelrod
Thu, 18 Dec 1997 18:05:23 -0500
failed contracts and restitution


someone does get to say 'this correspondence must now cease'? and I assume we will happily give this to our moderator?

after this ms. and before your next?


On Thu, 18 Dec 1997, Steve Hedley wrote:

At 12:25 18/12/97 -0500, Allan Alexrod wrote:

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'

But of course this is not a simple classification by measure, because most restitution measures are equivocal, eg :

If P pays over a sum to D and the law allows recovery back, the measure itself could equally be described as "P's loss" or as "D's gain".

that gives me pause but only to create a fourth remedial classification known as 'all of the above'

There are of course a few anomalous remedies which cannot convincingly be seen other than as measures of gain - I am thinking of actions to remove profits from defaulting fiduciaries and so on - but a law of restitution founded principally on obscure instances of that sort would be a very poor thing.

how would you classify the remedy in our mistake cases under what we call Occupants and Claimants Acts: an innocent trespasser upon being evicted is entitled to a lien against the realty for any value added during his possession: the amount doesn't measure what was spent nor does it reflect any sort of expectation?

anyway all i want to say of particular cases, such as the one you have just described and however small the category, is something which I know conveys meaning and gives an interesting differentiation for members of the bar:

'the measure of recovery in such and such a case was restitutionary'

but you keep imputing to me a desire to create or acknowledge a tawdry something you call a law of restitution, a desire to effect what lionel smith called a classification by creative event and to make statements such as 'the recovery in such and such a case was restitutionary' which does imply the cause-of-action leading to the recovery

you do not refute the idea that there is a useful category of restitution-unjust enrichment cases classified by creative event simply by showing that the measure of recovery in such cases does not uniquely measure defendant's gain so long as it does measure defendant's gain

as to whether there is a law of restitution classed by creative event we agree that the question is whether the classification is useful and other members of the group still awake might choose to address that

i will add:

one of the great articles in american legal history was entitled 'waiver distributed'

the author conclusively demonstrated that there was really no such thing as waiver---cases called waiver cases were really estoppels, or contract modifications---i can't remember the other categories

everyone however is still talking about waiver

if waiver and the law of restitution are otiose or misleading categories, what accounts for their persistence?

it's either utility or the devil?

<== Previous message      Back to index      Next message ==>

" These messages are all © their authors. Nothing in them constitutes legal advice, to anyone, on any topic, least of all Restitution. Be warned that very few propositions in Restitution command universal agreement, and certainly not this one. Have a nice day! "

Webspace provided by UCC   »
For editorial policy, see here.
For the unedited archive, see here.
The archive editor is Steve Hedley.
only search restitution site

 Contact the webmaster !