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I THE FUNDAMENTAL PRINCIPLES OF THE LAW OF RESTITUTION

THE ESSENCE OF RESTITUTION

WHAT IS THE LAW OF RESTITUTION ABOUT?

Before the principles and rules which form the law of restitution are examined, it is important to identify what this body of law is actually about. The answer is simple, but it is an answer which has rarely been articulated by judges or commentators. The law of restitution is concerned with the award of a generic group of remedies which arise by operation of law and which have one common function, namely to deprive the defendant of a gain rather than to compensate the claimant for loss suffered.[1] These are called the restitutionary remedies.[2] Whilst there is a great deal more to the subject than the identification of an appropriate remedy, since it is also vital to determine what circumstances will trigger the award of restitutionary remedies, it is only because there are a group of remedies which have a common function of depriving defendants of gains that we are able to assert that there is an independent body of law which can be called the law of restitution, a body of law which is concerned with the defendant’s liabilities to orders made by the court.[3] To understand what these remedies are, how they operate, and when they are available requires examination of a complex body of law. To assist in the understanding of this law it is necessary to identify and analyse the principles which underlie the rules. That is the aim of this book.

  • [1] See Lord Wright of Durley, Legal Essays and Addresses (Cambridge: Cambridge University Press, 1939),36; K Barker, ‘Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are Right’ (1998) 57 CLJ 301.
  • [2] The range of restitutionary remedies is considered at p 18, below.
  • [3] On the relevance of liabilities to the law of restitution see S Smith, ‘The Restatement of Liabilities inRestitution’ in C Mitchell and W Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment—Critical and Comparative Essays (Oxford: Hart Publishing, 2013), ch 10; S Smith, ‘A Duty to Make Restitution’(2013) 26 Canadian Journal of Law and Jurisprudence 157. Emphasizing the liability of the defendant to makerestitution, which depends on the court making an order, rather than a primary duty to make restitution,explains why the defendant is not liable to pay damages for a failure to make restitution. See S Smith, ‘UnjustEnrichment: Nearer to Tort Than Contract’ in R Chambers, C Mitchell, and J Penner (eds), PhilosophicalFoundations of the Law of Unjust Enrichment (Oxford: Oxford University Press, 2009), ch 7.
 
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