(B) WOULD THE AWARD OF A RESTITUTIONARY REMEDY TO THE CLAIMANT SUBVERT THE LAW OF CONTRACT?
Usually the question of the defendant’s incapacity will arise where the claimant and defendant have entered into a contract which has been vitiated by the defendant’s incapacity. The claimant may have transferred a benefit to the defendant pursuant to the transaction which the claimant will then wish to recover. The consequent question of policy is whether the granting of a restitutionary remedy to the claimant against the incapacitated defendant can be considered to subvert the law of contract by virtue of which the contract was treated as vitiated in the first place. This is an important issue, since it is a fundamental principle of the law of restitution that the award of restitutionary
See Chapter 25.
remedies must not subvert the law of contract. If the contract was vitiated because of a policy of protecting the defendant from the consequences of his or her incapacity, perhaps this policy should be carried through to the law of restitution as well, so that the restitutionary claim should fail.
Both of these policy questions must be borne in mind when considering whether different types of incapacity should operate as defences to restitutionary claims.
-  See p 134, above. 2 Family Law Reform Act 1969, s 1.