WHAT IS THE JUSTIFICATION FOR RECOGNIZING AN INDEPENDENT LAW OF RESTITUTION?
When the law of restitution was equated with the law of unjust enrichment, the justification for recognizing an independent body of law called the law of restitution was clear, since it was a distinct subject different from contract, tort, and the law of property. But, once it is accepted that the law of restitution is not confined to the law of unjust enrichment, but is simply a body of law concerning a common category of remedies which may be awarded in particular circumstances, the justification for recognizing an independent law of restitution is more difficult to find. It might be thought better to stop talking about and studying the law of restitution and, instead, concentrate our efforts on the law of unjust enrichment[1] [2] and, where relevant, wrongdoing and vindication of proprietary rights. This would be a mistake. Significantly, the American Law Institute in its Restatement Third: Restitution and Unjust Enrichment,[3] retains the word ‘Restitution’ and, whilst it includes core unjust enrichment liabilities, it also encompasses proprietary restitutionary claims and restitution for wrongs, albeit that in both cases unjust enrichment is considered to underpin the claim. As the Restatement proves, there is much to be gained from this holistic treatment of the law of restitution.
The main reason for identifying any legal category, such as contract, Equity, or company law, is that, by grouping together cases which are concerned with the same legal issues, common principles can be identified which assist in the better understanding and prediction of the law. This is true of the law of restitution as well. There are a number of common principles and questions of policy which relate to all restitutionary claims regardless of the cause of action.[4] So, for example, there are important questions of relevance to all restitutionary claims concerning how restitutionary remedies should be assessed. Similarly, there are defences which are generally applicable to all restitutionary claims regardless of the principle on which that claim is founded. Also, as a mechanism for analysis of the law, the law of restitution remains a useful hook on which to hang disparate areas of law. It forces us to make connections which might otherwise be ignored, so the subject remains of great benefit for the purposes of legal exposition. So, for example, when determining the role of fault,[5] the way fault is interpreted in one part of the law of restitution will be of importance when considering the issue in another area.[6] For all of these reasons much is to be gained by recognizing the law of restitution as an independent body of law in its own right, where the only common characteristic is that it concerns the award of remedies which are assessed by reference to the benefit obtained by the defendant.
- [1] See Chapter 25.
- [2] As Birks did in Unjust Enrichment and the editors of Goff and Jones have done in renaming the book TheLaw of Unjust Enrichment. See also Barnes v Eastenders Cash and Carry plc [2014] UKSC 26, [2015] AC 1,[100] (Lord Toulson), who emphasized that it is the content of the law which matters, rather than what it iscalled.
- [3] Restatement Third:Restitution and Unjust Enrichment (St Paul, MN: American Law Institute Publishing,2011).
- [4] These are identified and examined in Chapter 2. 93 See Chapter 2.
- [5] 94 See GJ Virgo, ‘The Role of Fault in the Law of Restitution’ in AS Burrows (ed), Mapping the Law of
- [6] Obligations (Oxford: Oxford University Press, 2006).
