A GJ Frontiers article.

Abstract

The aim of this paper is to advocate the taking of three steps which the American Law Institute’s successor to the 1937 Restatement of Restitution seems at the moment rather unlikely to take. All three aim at the elimination of ambiguities which, for seventy years, have gone far towards wrecking Scott and Seavey’s restitution project begun in 1933. The first is to ensure with ruthless clarity that ‘restitution’ in this context always means ‘gain-based recovery’ and is a synonym for ‘disgorgement’. The second is to narrow the meaning of ‘unjust enrichment’ so that that phrase is never engaged except where the event which generates a right to restitution is not a contract or a wrong. The law of unjust enrichment has nothing whatever to say about situations in which the reason why an enrichment at the expense of another has to be given up is a contract or a wrong. Such cases belong to the law of those familiar causative events. Unjust enrichment is a causative event of a third kind. The last is that the new restatement should either become the Restatement of Unjust Enrichment (in that narrowed sense) or, if it remains the Restatement of Restitution, must make perfectly clear that unjust enrichment is only one of several causative events which generate rights to restitution. Many claims are made for the law of restitution which can only be made of the law of unjust enrichment. Only by following these three precepts will the Anglo-American common law finally discover the territory which Scott and Seavey thought that they had found, namely its law of unjust enrichment.

Originally published in Global Jurist Frontiers.

Recommended Citation

Birks, Peter B.H. (2003) "A Letter to America: The New Restatement of Restitution," Global Jurist Frontiers: Vol. 3 : Iss. 2, Article 2.
Available at: http://www.bepress.com/gj/frontiers/vol3/iss2/art2