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WHAT IS THE NATURE OF RESTITUTIONARY REMEDIES?

(A) THE CATEGORIES OF RESTITUTIONARY REMEDY

The restitutionary remedies themselves fall into two distinct categories.

(i) Personal Restitutionary Remedies

These remedies restore to the claimant the value of a benefit which the defendant has received. They are said to operate in personam. This means that the defendant is liable to pay the value of the benefit to the claimant rather than transfer the benefit itself. Consequently, the claimant has a right against the defendant, rather than against the specific benefit which was transferred. So, for example, if the claimant pays ?1,000 to the defendant by mistake, the defendant will be liable to repay the amount of ?1,000 to the claimant, even if the defendant no longer has the money which he or she received from the claimant.[1] It follows that the award of a personal restitutionary remedy creates a relationship of creditor and debtor between the parties, since the defendant owes money to the claimant. Crucially, this category of remedy does not depend on the defendant retaining the benefit which he or she had received from the claimant.

  • [1] Subject to the application of defences, such as change of position. See Chapter 25.
 
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