Restitutionary Remedies for Torts

Question 1

Restitutionary Remedy Basics

Answer 1

Based on theory that D should not be unjustly enriched.

These damages are based on the amount of the benefit to D.

Remember with compensatory damages we cared about how much P was harmed, but here, with restitutionary damages, we care about how much D benefitted.

Question 2

3 Fact Patterns related to Compensatory or Restitutionary Damages

Answer 2

1) Only compensatory damages available = D destroys P’s car. Remedy is just the value of the car, in other words the cost to P. There’s no benefit to D. Just cost to P, therefore just compensatory.

2) Only restitutionary damages available. There is no real injury to P, maybe just nominal damages, but there is a benefit to D (like cutting across P’s land) and that benefit to D is the restitutionary damages.

3) Both compensatory and restitutionary are available (mixed hypo) + possibly punitive. You have machine in your business as P. Then D steals it and uses it in his business. P is injured (machine stolen) that’s compensatory. But D also benefitted (by stealing) so that’s unjust enrichment and deserves restitutionary damages. Could also get punitive damages here for stealing the machine. NOTE: You CAN’T get both compensatory and restitutionary damages, you give P the larger amount, but you want to talk about both.

Question 3

Replevin - Form of Restitutionary Remedy

Answer 3

This is when P recovers possession of personal property/chattel.

2 part test:
1) P must have right to possess +
2) Wrongful withholding by D

Timing of Recovery: This is one of the few areas where P can get something back BEFORE a FULL TRIAL ON THE MERITS. Mention also: to recover before trial, P will also have to post a bond to compensate D in case P is wrong. D could also stop replevin by posting a re-delivery bond himself, which would compensate P if D is wrong.

Who replevins? The SHERIFF. No self-help.

Question 4

Constructive Trust or Equitable Lien

Answer 4

If D has title, think constructive trust or equitable lien

Usually wrongfully acquired property over which D has title.

Notes on these situations:
1) show there is no adequate legal remedy (money). Can’t use equitable remedies unless there are no adequate legal remedies. This could be inadequate because:
-> D is insolvent.
-> For constructive trust, there is unique property

2) Tracing allowed

3) BFPs prevail over P

4) P prevails over unsecured creditors, but to the extent there is a deficiency judgment connected to the equitable lien, then P will have to get in line with other creditors for that deficiency judgment.

Question 4

Ejectment - Form of Restitutionary Remedy

Answer 4

Ejectment = P recovers possession of real property

2 part test same as replevin:
1) P must have right to possess +
2) Wrongful withholding by D

Most likely bar exam issue: relates to status of D. Must be D who STILL HAS POSSESSION like holdover tenant or adverse possessor

Talk about restitutionary or compensatory damages too while talking about ejectment

Question 5

Equitable Restitutionary Remedies Generally

Answer 5

Constructive Trust
- D serves as trustee and must return to P

Equitable Lien
- property subject to immediate sale with $ to P

Question 6

Choosing between Constructive Trusts and Equitable Liens

Answer 6

if Property value subject to the wrongful taking increases = pick constructive trust

if Property value subject to the wrongful taking decreases = pick equitable lien

Note: when D’s property can’t be traced SOLELY to P’s property, only an equitable lien is available