THE RESTITUTIONARY REMEDIES - Contracts

Question 1

Purpose

Answer 1

TO PREVENT UNJUST ENRICHMENT

Question 2

THE BASIC BAR EXAM RESTITUTIONARY “CONTRACT” FACT PATTERN
Contract “fails” after plaintiff has rendered performance (partial or complete).
2 WAYS THIS OCCURS ON THE BAR EXAM:

Answer 2

1. K unenforcable
2. K breached

Question 3

The contract is unenforceable due to….

Answer 3

, e.g., mistake, lack of capacity, statute of frauds, illegality.

Question 4

UNENFORCEABLE CONTRACTS

Can plaintiff get restitutionary damages for property/money given to, or services rendered for, defendant?

Answer 4

Yes - for the value of the benefit

Question 5

UNENFORCEABLE CONTRACTS

Can plaintiff get the property back?

Answer 5

Yes - if it is unique or the D is insolvent

Question 6

BREACHED CONTRACTS
Bar Exam Threshold Inquiry:

Answer 6

Who is the plaintiff?

Is she the nonbreaching or breaching party?

Question 7

Plaintiff As “NON-BREACHING” Party:

The 2 Questions:

Answer 7

1) Can plaintiff get restitutionary damages for property/money given to, or services rendered for, defendant?

• yes, for the value of the benefit
• Note: Again, the value of the recovery may be greater than the contract rate.

2) Can plaintiff get the property back?
* Yes, if it is unique or defendant is insolvent.

Question 8

Plaintiff As “BREACHING” Party:

Can plaintiff get any restitutionary damages?

Answer 8

Traditionally no

Modern: recovery allowed

But: (a) Cannot be greater than contract rate and (b) is reduced by any damages suffered by defendant as a result of the breach.