Midterm - Restitutionary Remedies Flashcards
Restitution: Intro
What is the PURPOSE of restitutionary remedies?
To prevent UNJUST enrichment –> by stripping D of benefit obtained at P’s expense
D’s conduct need not be a WRONG -> available simply because would be UNFAIR for D to retain benefit
Restitution: Intro
What is the conceptual basis of restitution?
Basis - RESTORING a benefit for which justice doesn’t permit one to retain.
Restitution: Intro
What is required for P to be able to claim restitution?
To be available, something must have been a) GIVEN by P and b) RETAINED by D without JURISTIC reason (Kerr v Baranow)
D’s gain can be POSITIVE or NEGATIVE
Corresponding loss to P not required (Apotex)
Restitution: Intro
How are damages ASSESSED for restitution? Cite the case
Wrotham Park - hypothetical Q -> had they negotiated, what WOULD the price have been?
(ie how much would P have reasonably demanded for the benefit? What value was it to D?)
Restitution: Steps
- What are the steps in ESTABLISHING unjust enrichment??
- ESTABLISHING Unjust Enrichment - a) ENRICHMENT, b) DETRIMENT, c) absence of juristic REASON
Restitution: Steps
- What are the DEFENCES to unjust enrichment?
- Defences - a) CHANGE of position, b) ESTOPPEL, c) LACHES, d) STATUTE, e) EQUITY
Restitution: Establishing Unjust Enrichment
1a Enrichment: Describe how P can establish enrichment.
Enrichment = D obtains benefit from P through wrongdoing
- onus on P
- must be a DIRECT benefit (to protect 3Ps)
- Positive or Negative
Restitution: Establishing Unjust Enrichment
1a Enrichment: How can D MITIGATE remedies/damages?
Damages may be mitigated where D has (legitimately) NOT KEPT/passed on THE BENEFIT (e.g. Garland - thinking they saved money –> gave bonus to employees)
Restitution: Establishing Unjust Enrichment
1b DETRIMENT - Describe detriment and how to establish it
Detriment = P deprived of legal right/interest
- onus on P to ID detriment
- must ID CAUSAL link (eg loss of opportunity to bargain - Wrotham Park, unpaid services - Wilson)
Restitution: Establishing Unjust Enrichment
1c ABSENCE of Juristic Reason - describe how to establish absence of juristic reason
PRIMA FACIE unjust enrichment if benefits cannot be retained under ESTABLISHED categories (contract, donation, etc)
- REBUTTABLE by a) reasonable expectations or b) policy
Restitution: Defences to Unjust Enrichment
What is the likelihood of success for the change of position defence?
VERY UNLIKELY to succeed (esp in family ctxt (Wilson))
Restitution: Defences to Unjust Enrichment
What is required to succeed with the Change of Position defence?
D substantially altered position DUE TO benefit –> beyond using
1) UNFAIR to disgorge
2) D’s conduct INNOCENT (Garland)
Note: unlikely to succeed in family law (Wilson)
Restitution: Defences to Unjust Enrichment
Briefly describe other defences available.
1) Estoppel - D acted BASED ON P’s conduct
2) Laches - Delay lead to D reasonably believing P won’t pursue claim
3) Statute
4) Equitable considerations
Restitution: Availability
Give examples of where restitutionary remedies are available.
1) Wrongful interference w/ chattels - Strand Electric
2) Trespass to land - Whitham
3) Economic torts - Peter Pan
4) Breach of fiduciary duty - Blake
5) Cohabitants
Restitution: Availability
Is restitution generally available for BREACH OF CONTRACT? Explain
No - damages limited to LOSSES from breach (Surrey v Bredero)
Policy - prevent overcompensation and efficient breach
Exception - to PREVENT INJUSTICE (eg Blake)
