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