The Role of Negligence in the Law of Restitution

24 Pages Posted: 27 Mar 2009 Last revised: 28 Feb 2011

Patrick Luff

Luff Law Firm, PLLC; University of Oxford - Faculty of Law

Date Written: March 27, 2009


Lying just beneath the surface of the law of restitution is fault. The fundamental rule on which restitution is based is that an individual may not keep that to which he is not entitled under circumstances that would make his retention of the res — be it money, real property, or something less tangible, such as a release from some obligation — unjust. But to understand this formulation of the basic principle, we must first understand an even more basic one: what makes the retention of the res unjust? This Article discusses one facet of the law of restitution — the role of negligence — to argue that the justness of the defendant keeping the benefit he has received from the plaintiff depends on whether (and to what extent) the parties had an opportunity to contract. Once it is determined whether the parties had that opportunity, the law then determines the degree to which it will excuse the fault of the parties, either in allowing restitution as a cause of action, or in using restitution as a measure of damages. Additionally, this Article considers whether various theories advanced for the law of restitution hold up when their explanations are applied to the way restitution treats negligence. This Article concludes that restitution as a quasi-contractual device best explains the way restitution treats negligence.

Keywords: restitution, negligence

Suggested Citation

Luff, Patrick, The Role of Negligence in the Law of Restitution (March 27, 2009). Available at SSRN: or

Patrick A. Luff (Contact Author)

Luff Law Firm, PLLC ( email )

1350 Bandera Hwy.
Suite 803
Kerrville, TX TX 78028
United States
(512) 710-6830 (Phone)


University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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