Contract, Gift, or Covenant? A Review of the Law of Overpayments

47 Pages Posted: 5 Nov 2011

Date Written: January 1, 1991


Most major government assistance programs in the United States make provisions to remedy the incorrect payment of assistance to eligible programs. In most programs these payments are termed “overpayments,” and many are caused by agency errors ranging from mechanical failure of check-issuing computers to social workers’ mistakes in determining eligibility or amounts due. The law of overpayments opens one small window on a significant question about United States welfare programs: how should we describe benefits that a dependent person receives from the government, and how should we understand the relationship between the government and the dependent citizen? This article describes and evaluates several possible models for understanding the relationship including the gift, the contract, the potlatch, and the covenant relationship. The article then suggests that as seen from the recipient’s perspective, the law of overpayments generally borrows the most negative aspects of each of these models. The article suggests that any of these models, if adopted and utilized consistently within and across programs, would provide a more consistent and fair approach for recipients than the current disarray of the law of overpayments.

Keywords: Overpayments, gift, contract, potlatch, covenant relationship, United States welfare programs, dependent persons

Suggested Citation

Failinger, Marie A., Contract, Gift, or Covenant? A Review of the Law of Overpayments (January 1, 1991). Loyola Law Review, New Orleans, Vol. 36, p. 89, 1991, Available at SSRN:

Marie A. Failinger (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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