The Mistake About Mistakes: Rethinking Partial Restitution

25 Pages Posted: 16 May 2018  

Maytal Gilboa

Tel Aviv University

Yotam Kaplan

Bar-Ilan University - Faculty of Law

Date Written: May 2, 2018

Abstract

This Essay offers a critique of the conventional analysis of restitutionary claims. Currently, restitutionary claims are mostly analyzed under a tort-style framework; we show that this framework offers a distorted perspective, not fully capturing the unique characteristics of claims in restitution. Most importantly, the prevailing mode of analysis generates inaccurate results – by scholars and courts alike. In particular, the tort-style analysis supports limited restitution as a superior regime, compared to the option of full restitution. We demonstrate that this prevailing conclusion is unfounded. In fact, and contrary to conventional wisdom, the regime of full restitution can be preferable to the regime of limited restitution. The Essay highlights the significance of this conclusion for current policy debates.

Keywords: restitution, remedies, mistaken payments, economic analysis, change of position

JEL Classification: K11, K12, K13, K22

Suggested Citation

Gilboa, Maytal and Kaplan, Yotam, The Mistake About Mistakes: Rethinking Partial Restitution (May 2, 2018). George Mason Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3172046

Maytal Gilboa

Tel Aviv University ( email )

Ramat Aviv
Tel-Aviv, 6997801
Israel

Yotam Kaplan (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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