Pg 14 Flashcards
What is the only situation where restitution applies?
When the plaintiff has confirmed a benefit on the defendant and it would be unjust for the defendant to keep it about compensation
Restitution is an alternative to what?
Damages. It is not in addition to damages. You can usually only get EITHER damages OR restitution, not both
How do you discuss restitution on an essay?
- start with the liability theory
– move to the remedy of restitution
What is the difference between damages and restitution?
– damages: these are based on the INJURY suffered
– restitution: based on liability for UNJUST ENRICHMENT
If damages might be available and restitution might also be a possibility, how do you discuss that on an essay?
Discuss the damages first, then, in the alternative, discuss restitution
What do you do on an essay if it is difficult to figure out the liability theory?
Just assume there is one, explain why it is difficult to figure out, and move on. Say, “Assuming a liability theory is found,“ then talk about remedies.
Why should you always watch the interrogatory language carefully when it comes to remedies essays?
If it asks for damages, don’t talk about restitutionary remedies. If it just asks what recovery, then first discuss damages, then restitution as an alternative. Make sure you keep both categories separate
When dealing with tort restitution, how do you do that?
- discuss available damages
– for restitution say whether it would be smart to waive the tort and sue in assumpsit - then discuss what the increased recovery would be if you did
How do you discuss contracts on an essay?
– liability theory [always breach of contract]
– discuss whether the P will enforce the contract and sue for damages or seek restitution
Can you recover loss of use damages even in restitution?
Yes, so always throw this in for extra essay points
What is restitution?
Liability based on unjust enrichment. A benefit has been confirmed by the P on the D that would be unjust to allow the defendant to keep without compensating
What is the goal of restitution?
To prevent unjust enrichment at the expense of the plaintiff. This is not compensation like it is for damages.
Restitution is a general area that includes many concepts, it is basically what?
Just the basis for giving restitution, it includes concepts like: unjust enrichment, disgorgement, constructive trust, equitable lien, replevin, ejectment. Restitution is awarded through one of the many restitutionary remedies
What is unjust enrichment?
When retaining a benefit without proper compensation would be wrongfully at the expense of the other. The focus is on whether RETENTION of the benefit would be wrongful, not if the initial RECEIPT or benefit was wrongful.
What does it mean that unjust enrichment is usually an optional remedy?
After the plaintiff has established a liability theory, this is usually an optional remedy that can be tacked on. Although sometimes unjust enrichment is the only liability theory when the defendant got a benefit without committing a tort or a contract breach and did nothing wrong, but it would still be unjust to let him keep the benefit without compensating the plaintiff
If a plaintiff and defendant made a contract for the plaintiff to buy the defendant’s car for $5000, and the plaintiff gives the defendant $6000 without realizing it, what happens?
The defendant didn’t commit a tort or breach a contract by accepting the money, but the court may consider it unjust enrichment to allow him to keep the extra $1000, so they would order restitution of that money.
How does unjust enrichment relate to restitution?
It is the rationale behind giving restitution, it is not a restitutionary remedy
What is quasi-contract?
A contract that is implied at law by a court when it is necessary to avoid unjust enrichment
What is quantum meruit?
This is not a remedy, but a measurement. It is often used when giving restitution through quasi-contract. It means “as much as he deserves.“ The defendant must compensate the plaintiff for the reasonable value of a benefit that he got even though there was no express contract, because retaining the benefit would be unjust enrichment.
If plaintiff was anticipating performance so he made a $500 down payment to the defendant, but the contract ends up being unenforceable, would quantum meruit apply?
No, instead quasi-contract would be used to make the defendant return the $500 to the plaintiff to avoid unjust enrichment. But if the plaintiff believed there was a valid contact and she painted the defendant’s house, but the contract was unenforceable, then quantum meruit would demand that the plaintiff be given the reasonable value of the services that she performed because that’s a benefit the defendant got and it would be unjust to let him keep it without compensating the plaintiff
What is an example of quantum meruit?
If a contract between the parties was unenforceable because of impossibility, but the plaintiff can still recover the value of the work he performed under the belief that the contract was enforceable. This avoids the defendant being unjustly enriched at the plaintiff’s expense
What is disgorgement?
An order that requires the defendant to surrender to the P all gains that he got that can be traceable to his wrongful conduct
What is an equitable lien?
This is the remedy that is used to let the plaintiff become a secured creditor and have a priority claim over certain property
What is replevin and ejectment?
Remedies that deal with restoring specific property to the plaintiff or rejecting a trespasser off of the real property. Replevin allows for the physical recovery of personal property from another when the defendant wrongfully gets possession of property through an unlawful taking
What is the rationale behind restitutionary remedies?
To recover the benefit that the defendant got, not to compensate for the harm. The goal is just to restore the property to its rightful owner by returning the plaintiff to the position he was in before the wrong, or to disgorge from the defendant any unjust enrichment from the wrong. Sometimes this means that the plaintiff gets more than he lost
What is restitution often used for?
Fraud
If an embezzler bought land with stolen money, what happens?
He cannot keep the land or any profits from it
What are the two main purposes of restitution?
- disgorgement
– recovery of the benefit to the defendant
For restitution does it matter if the defendant is a wrongdoer?
No, he could innocently get the benefit
What is the first thing you have to find in order to give restitution?
The defendant had to have been enriched or gotten something of value.
If a plaintiff and defendant have a contract for the defendant to paint the plaintiff’s house, but before any work is done the defendant tells the plaintiff he will not do it, what can the plaintiff do?
- can sue in damages for breach of contract
– but she has no restitution claim because the plaintiff never conferred a benefit on the defendant, so there was no gain that was realized. If the plaintiff had paid a down payment to the defendant, she could get it back in restitution because that would be a gain realized by the defendant and it would be unjust for him to keep it
What are factors to decide if restitution should be given?
- fairness – nature of the defendant's wrong – extent of his contribution – feasibility of apportionment – culpability of the defendant
The more culpable the defendant’s behaviour was, the more likely the plaintiff will recover all profits
What is the goal of contract restitution?
To return the aggrieved party to the position he was in before he entered the contract. This is done by making the defendant return anything that he got from the plaintiff and making him pay the reasonable value
What has to happen before you can get contract restitution?
There has to have been a contract breach
If you contract with the defendant to buy his car for $5000 and you make a $500 down payment at formation, and then he says he will not sell the car, what can you do?
- sue for damages caused by the breach [but that is just the difference between the contract price and market price. If $1000 dollars is the market price, then the difference is zero]
– if you sue in restitution you can get back the $500
What is the full performance exception to contract restitution?
If the plaintiff has already fully performed his side of the contract, then he cannot get restitution. He can only sue for damages. I.e.: if you contract with defendant to paint his house, and since you are friends, you give a reduced rate of $2500 when you usually charge $5000, and you paint 2/3 of his house, and then he says he isn’t going to pay you, you can sue him for damages for breach of contract [profit you expected to make on the contract plus the costs spent to date], or you can sue in restitution [reasonable value of the benefit you conferred in painting 2/3 of the house]. BUT if you finish painting the house and the plaintiff refused to pay, you could only sue for damages and not in restitution because of the full performance exception.
