(D) SUMMARY OF THE KEY PRINCIPLES

The consequence of the analysis adopted in this book and developments in the case law is that the law of restitution should properly be analysed in the following way. The law of restitution is concerned with all claims where the remedy which the claimant seeks is assessed with reference to the defendant’s gain. Such remedies are available in three situations: first, where it can be shown that the defendant has been unjustly enriched— here the only remedies which are available are personal restitutionary remedies; secondly, where the defendant has committed a wrong for which restitutionary relief may be available—here the remedy may be restitutionary, but it can also be compensatory; finally, where the claimant wishes to vindicate his or her property rights—here the remedy is typically restitutionary and, depending on whether or not the defendant retains property in which the claimant has a proprietary interest, the restitutionary remedy will either be proprietary or personal.

 
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