Pg 15

Question 1

How does it work to get restitution in tort?

Answer 1

The plaintiff can elect to sue in restitution instead of for damages by “waiving the tort and suing in assumpsit.”

Question 2

What does it mean to waive the tort and sue in assumpsit?

Answer 2

This means that the person is electing not to pursue damages related to the tort, but instead to sue in quasi-contract to enforce an implied promise that the defendant will compensate the plaintiff for the benefit the defendant got. The plaintiff doesn’t actually waive the tort [it is still actionable], he just doesn’t pursue damages for it and instead goes with the alternative remedy of restitution.

Question 3

If you have a rusted bike in your yard that is worth $10, and your neighbour hears about an exhibit that will pay $100 for the bike, so he steals it from you and sells it for $100, what can you do?

Answer 3

• you can sue for conversion, but you only get the fair market value of the bike which is $10
  – or you can waive the tort and sue in assumpsit to get the $100 based on quasi contract

Question 4

Is it always possible to waive the tort and sue in assumpsit for tort restitution?

Answer 4

• YES: conversion, trespass to chattel, fraud
  – NO: personal injury torts. You can only get damages for things like battery and defamation
  – split: trespass to land [some courts allow it and some courts don’t]

Question 5

How do you apportion benefits under tort restitution when there’s a combination of something that was gotten wrongfully and something that was gotten rightfully that resulted in gain to the D?

Answer 5

For example, if the defendant knows a buyer that wants a complete set of US coins from 1984 and will pay a lot of money for it, and the defendant has all of the coins except one, so he steals the missing one and sells the entire set for a lot of money. The benefit he got was from something he wrongfully acquired [the stolen coin] and what he lawfully owned [the rest of the set] together. Courts look at the following factors to decide if apportionment is feasible:
– if the benefit is capable of being proportionally divided
– the culpability of the defendant [the more wrongful his conduct the less likely apportionment will be given]
– the defendant has the burden of proving how apportionment should be made by showing what portion of the total came from lawful activities and what portion didn’t.

Question 6

What is the major benefit of suing in assumpsit under tort restitution?

Answer 6

There’s usually a longer SOL

Question 7

What is the remedy for unjust enrichment

Answer 7

Either:

• restore the benefit/its traceable product, or
• pay money

Question 8

How do you get restitution for unjust enrichment?

Answer 8

Through specific actions like: quasi-contract, indemnity, subrogation, constructive trust, etc.

Question 9

What are the three things that are required to have unjust enrichment?

Answer 9

– enrichment or benefit to the defendant
– that would be unjust to the plaintiff
– expectation by the plaintiff when he confirmed the benefit that there would be payment or compensation

Question 10

If you confer a benefit on someone without any manifest intent to be compensated, can you get restitution?

Answer 10

No, because there has been no unjust enrichment since there was no expectation of payment

Question 11

What is an example of a situation that you wouldn’t be able to get restitution for?

Answer 11

Taking care of your dad‘s garden just because you love him. In that case there was no unjust enrichment because there was no expectation of payment

Question 12

If a benefit was a gift to someone, can there be unjust enrichment?

Answer 12

No

Question 13

What does the marriage presumption say?

Answer 13

Benefits given by one spouse to the other are gifts. When both spouses do the usual activities of the marital relationship, there is no restitution for these. But if there was an agreement between the spouses and an extraordinary or unilateral effort by one spouse solely benefitted the other, then restitution is allowed

Question 14

What is the volunteer principal under unjust enrichment?

Answer 14

Anyone that acts without being requested on his own volition and confers a benefit on someone else is not entitled to restitution. This protects people from having unsolicited benefits thrust on them and then having to pay for them.

Question 15

If a person is acting to protect his own legal interest, is he considered a volunteer under unjust enrichment?

Answer 15

No

Question 16

If you were acting from a moral duty are you deemed to be a volunteer under unjust enrichment?

Answer 16

Yes

Question 17

What happens when a payment is mistakenly made with regard to unjust enrichment?

Answer 17

When someone gets a benefit with knowledge that it was a mistake, he is unjustly enriched. I.e.: overpaying a debt accidentally, improving property that you think is yours but it isn’t, etc.

Question 18

What are the three approaches under unjust enrichment to measuring the benefit?

Answer 18

– cost of producing
– the market value of the thing produced
– value to the defendant of the thing produced

Question 19

What are the 8 most important restitutionary remedies?

Answer 19

LEGAL restitutionary remedies:
- quasi-contract
- replevin
– ejectment
- conversion

EQUITABLE restitutionary remedies
- disgorgement
– constructive trust
– equitable lien
– purchase money resulting trust
– pro rata resulting trust

Question 20

On an essay when you’re dealing with tort restitution, what is good opening language?

Answer 20

“Plaintiff chose to waive the tort and sue in assumpsit under… [replevin, quasi-contract, etc.]”

Question 21

What are the four major legal restitutionary remedies?

Answer 21

QERC (quirk)

• quasi-contract
• ejectment
• replevin
• conversion

Question 22

Is it important to differentiate between legal restitution remedies and equitable ones?

Answer 22

No, they are all restitutionary remedies and they are just categorized this way for historical reasons

Question 23

What is involved in the restitution remedy of quasi- contract?

Answer 23

A contract is implied at law between the parties to avoid unjust enrichment and requires the defendant to compensate the plaintiff for the benefit he received. Heavily tested

Question 24

What is the standard measure for quasi-contract?

Answer 24

The reasonable value of the benefit conferred

Question 25

What are the elements of quasi-contract?

Answer 25

• benefit conferred on the defendant by the plaintiff
  – benefit conferred with reasonable expectation of payment
  – awareness and knowledge by the defendant of the benefit
  – acceptance or retention

Question 26

What are examples of things that could count as a benefit being conferred on a defendant for quasi-contract?

Answer 26

Anything that adds to the other’s advantage by giving them a benefit or saving them from an expense or loss

This includes literally any form of advantage

Question 27

What does it mean for quasi-contract that the benefit conferred has to include some reasonable expectation of payment?

Answer 27

The plaintiff can’t just gratuitously confer a benefit on someone and expect to be paid for it. He can’t mow the neighbour’s lawn and then demand payment

Question 28

What is involved in the element of quasi-contract that requires awareness and knowledge by the defendant of the benefit?

Answer 28

The defendant must in some way be aware of what he got from the plaintiff

Question 29

What is involved in the element of quasi-contract that calls for acceptance or retention of the benefit?

Answer 29

This must happen under circumstances that would make it inequitable to retain the benefit without paying for it

Question 30

What is the legal restitutionary remedy of replevin?

Answer 30

An action by the plaintiff seeking return of personal property that is in the possession of the defendant but belongs to the plaintiff. P just has to show he has a superior right to possess the property. This only applies to tangible property, and not to money

Question 31

What is an example of a time you would seek replevin?

Answer 31

If a plaintiff has heirlooms that a thief steals and then he sells to the defendant, the plaintiff can seek replevin against the current possessor of the property, which is the defendant, even though he wasn’t technically the wrongdoer.

Question 32

What is the tricky thing about bona fide purchasers and stolen items?

Answer 32

It is impossible to be a bona fide purchaser for a stolen item because a thief can never deliver good title. So a P can always sue the D for damages for conversion, but if he wants the item back, he can waive the tort and sue in assumpsit for the restitutionary remedy of replevin, which can be maintained against the defendant who acted wrongfully and anyone else that is the current possessor of the property even if they didn’t act wrongfully because they do not have good title. P just has to show that he has a superior right to possession over the defendant

Question 33

What is involved in the legal restitutionary remedy of ejectment?

Answer 33

This is an action to recover immediate possession of real property. It applies when the defendant wrongfully possesses real property that belongs to the plaintiff and ejectment restores the plaintiff to immediate possession of the land

Question 34

What is involved in the legal remedy of conversion of money in restitution?

Answer 34

The plaintiff can get return of the property plus damages for loss of its use