Restoring Restitution to the Canon

Abstract

This is a review of the Restatement (Third) of Restitution and Unjust Enrichment. This new Restatement makes an important body of law much more accessible to lawyers, judges, and scholars. It offers functional explanations in modern English, with minimal reliance on distinctions between law and equity and with no explanations that depend on quasi-contract or the forms of action. It should be on every litigator’s bookshelf, and anyone who works in private law should at least be familiar with it. Restitution has broad applications to mistake, failed contracts, commercial torts, intellectual property, insolvency, remedies, and many narrower topics.

This review surveys the Restatement’s scope of coverage, organization, and basic substantive principles. I devote special attention to the Restatement’s clarification of the relationship between restitution and contract, and thus of contract remedies more generally. And I consider its treatment of attorneys’ fees in common fund cases as a means of examining its strong presumption against forced exchanges — against requiring defendants to pay for benefits they might not have wanted.

Keywords: restitution, unjust enrichment, restatement, disgorgement, mistake, voluntary payment rule, contract damages, forced exchange, attorneys' fees, common fund cases