Restitution for Wrongs and the Restatement (Third) of the Law of Restitution

The law of restitution has been the forgotten step-child of American private law for many decades. The American Law Institute’s current project to produce a new restatement of the law of restitution holds the promise of bringing the subject to the foreground and removing some of the confusion that many lawyers and judges feel in approaching the topic. One of the important issues that must be addressed in any comprehensive treatment of the law of restitution is how to treat those areas where the possibility of recovery based on the unjust enrichment principle overlaps with recovery based on the law of contract or tort. In those areas, it has been common to regard the law of restitution as “parasitic,” that is, it is widely assumed the other law determines whether conduct is rightful or wrongful; restitution simply provides an additional remedy in those cases where the conduct is wrongful. The thesis of this article is that this common view of the relationship between restitution and tort is wrong. It argues that it is not helpful to think that the law of tort is the natural source of judgments about what is rightful and what is wrongful. That is, the contribution of the law of restitution in that area is more than to provide an additional remedy for conduct that is judged wrongful under the law of tort or other law. The topic is not only important and timely, it has an attribute not often found in law—it’s fun. How can one resist an area where the cases themselves involve such matters as trespass in the Great Onyx Cave or wrongful use of an egg washing machine, and where explanation of the problems brings to mind the Three Little Pigs or musings about the dealings between crusty old Vermonters and New York tourists