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THE PRINCIPAL TYPES OF RESTITUTIONARY REMEDY

There are a number of different restitutionary remedies which will be examined throughout this book. At this stage it is sufficient to identify the most important ones. Whilst the remedy which is available for a particular restitutionary claim will vary according to the circumstances of the case, the function of all restitutionary remedies is ‘to effect a fair and just balance between the rights and interests of the parties concerned’.[1]

(A) MONEY HAD AND RECEIVED

This is a Common Law restitutionary remedy which is applicable where the claimant simply wishes to recover money which had been paid to the defendant. It is a personal remedy which enables the claimant to recover the value of the money received by the defendant rather than the actual notes and coins transferred.

(B) REASONABLE VALUE OF PROPERTY AND SERVICES

Where the claimant has transferred property to the defendant, or has provided a service for the benefit of the defendant, and the claimant successfully brings a restitutionary claim in respect of these benefits, the typical remedy which he or she will be awarded is a pecuniary one, assessed by reference to the value of the benefit received by the defendant.

Where the claim is for the reasonable value of the property transferred, this is called a quantum valebat, and where the claim is for the reasonable value of services, this is called a quantum meruit, which literally translated means ‘as much as he deserves’.[2] [3] The question of valuation of goods and, particularly, services is one which is fraught with difficulty.

  • [1] Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221, 237 (Lord Clyde).
  • [2] Benedetti v Sawiris [2010] EWCA Civ 1427, [2] (Arden LJ). 97 See Chapter4.
  • [3] 98 See Chapter 16.
 
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