Restoring Restitution

18 Pages Posted: 28 May 2008

See all articles by Ernest J. Weinrib

Ernest J. Weinrib

University of Toronto - Faculty of Law


This Review first outlines the assumptions implicit in the Restatement and Commonwealth approaches to restitution. The Restatement begins with the basic principle of unjust enrichment, that a person who has been unjustly enriched at the expense of another is liable to make restitution to that other. The first assumption is express: that this principle is the unifying theme of what were previously considered to be separate pockets of liability, and that we can understand the these separate instances of liability only when we appreciate the principle that they all instantiate. The principle thus acts as to make the law coherent across different transactions. The second assumption is tacit: that liability under unjust enrichment works justice as between the parties, i.e., that, in the language of contemporary legal theory, it exemplifies corrective justice. This means that the principle provides a fair and coherent ordering within each transaction that it governs. In order for the principle of unjust enrichment to do this, it must represent a justification that normatively links the parties into a unified relationship, where the injustice that liability corrects is the same from the viewpoint of both parties. This can be done only through the non-instrumental reasoning of a system of rights: the plaintiff must be understood as claiming that what was rightfully the plaintiff's has been ineffectively transferred to the defendant and therefore should be restored. These two assumptions are related, because coherence across transactions does not make sense unless there is also coherence within each transaction.

Finally, the Review turns to the reason for Dagan's rejection of corrective justice. His argument (which in the book he specifically directs against me) is that corrective justice has a distributive basis because it must work with a notion of property that has distributive consequences. This argument is wrong on several grounds. First, whether a legal operation is distributive does not depend on the fact that it has an effect on what a party has or does not have (any operation in private law of course has an effect) but depends on the structure of the reason that grounds the effect. Second, if Dagan's claim is to succeed, it must be that property is necessarily justifiable only on the basis of distributive justice. This is a popular academic claim, but in fact it is mistaken, as the history of political theory is full of arguments that put property on a non-distributive basis. The stongest of these arguments was made by Kant, who shows that Grotius's idea of private property as a distribution of property held by the community in common simply misses the point. What the argument has to justify is how property as a right that is external to oneself can exist at all, whether held individually or in common. Grotius's approach (and that of his modern heirs such as Dagan) simply assumes that property exists, and therefore does not explain how this existence is possible. The only way to resolve the problem is to show how property presupposes the very ideas of right and freedom that are integral to corrective justice.

Suggested Citation

Weinrib, Ernest J., Restoring Restitution. Virginia Law Review, Vol. 91, No. 3, 2005, Available at SSRN:

Ernest J. Weinrib (Contact Author)

University of Toronto - Faculty of Law ( email )

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Toronto, Ontario M5S 2C5

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