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Steve Hedley
Fri, 19 Dec 1997 11:20:09
failed contracts and restitution


I begin to see, I think. In your jurisdiction, or so I infer from what you say, it is settled that there is a law of restitution based on unjust enrichment. So settled is this point, indeed, that it is news to you that any other view might seriously be entertained. Am I right ?

Whereas in mine, the propositions that there is a law of restitution, and that it is based on unjust enrichment, have only relatively recently been promoted with any vigour. Those who maintain those propositions are not repeating obvious truths, but saying something they know others might reasonably disagree with. They may be right, they may be wrong, but that cannot and do not present it as the only possible view.

Accordingly, what seem to you as obvious propositions about unjust enrichment seem to us as propositions which need to be established through reasoned argument; and whereas with you, legal conservatism is in favour of unjust enrichment, here it is against. The 'unjust enrichment' camp have many arguments, but cannot claim to represent an established orthodoxy; and when they seek to analyze a remedy as restitutionary, it is by no means immaterial that it can be analyzed in other ways. It is very much to the point that there are others ways of looking at these things.

Accordingly, at 18:05 18/12/97 -0500, Allan Axelrod wrote:

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'

Whereas here, it means little to typical members of the bar, and so those who wish to promote it must attempt to give it a meaning. And if those in favour of 'unjust enrichment' here admit that the category of claim is small, they call in question the utility of asserting its existence. They wish to gain acceptance for it, and so are forced to claim that it is important.

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

If I seem to you to be imputing that view to you, that is because that is the view I expect to be behind support for 'unjust enrichment'.

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 hope they will. The question whether 'unjust enrichment' is actually a *useful* classification has been much neglected.

i will add:

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

it's either utility or the devil?

At present, in this jurisdiction, restitution has only persisted for a rather small fraction of the time that rival theories lasted; resort to supernatural explanation seems premature.


Steve Hedley

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