Pg 14

Question 1

What is the only situation where restitution applies?

Answer 1

When the plaintiff has confirmed a benefit on the defendant and it would be unjust for the defendant to keep it about compensation

Question 2

Restitution is an alternative to what?

Answer 2

Damages. It is not in addition to damages. You can usually only get EITHER damages OR restitution, not both

Question 3

How do you discuss restitution on an essay?

Answer 3

• start with the liability theory

– move to the remedy of restitution

Question 4

What is the difference between damages and restitution?

Answer 4

– damages: these are based on the INJURY suffered

– restitution: based on liability for UNJUST ENRICHMENT

Question 5

If damages might be available and restitution might also be a possibility, how do you discuss that on an essay?

Answer 5

Discuss the damages first, then, in the alternative, discuss restitution

Question 6

What do you do on an essay if it is difficult to figure out the liability theory?

Answer 6

Just assume there is one, explain why it is difficult to figure out, and move on. Say, “Assuming a liability theory is found,“ then talk about remedies.

Question 7

Why should you always watch the interrogatory language carefully when it comes to remedies essays?

Answer 7

If it asks for damages, don’t talk about restitutionary remedies. If it just asks what recovery, then first discuss damages, then restitution as an alternative. Make sure you keep both categories separate

Question 8

When dealing with tort restitution, how do you do that?

Answer 8

• discuss available damages
  – for restitution say whether it would be smart to waive the tort and sue in assumpsit
• then discuss what the increased recovery would be if you did

Question 9

How do you discuss contracts on an essay?

Answer 9

– liability theory [always breach of contract]

– discuss whether the P will enforce the contract and sue for damages or seek restitution

Question 10

Can you recover loss of use damages even in restitution?

Answer 10

Yes, so always throw this in for extra essay points

Question 11

What is restitution?

Answer 11

Liability based on unjust enrichment. A benefit has been confirmed by the P on the D that would be unjust to allow the defendant to keep without compensating

Question 12

What is the goal of restitution?

Answer 12

To prevent unjust enrichment at the expense of the plaintiff. This is not compensation like it is for damages.

Question 13

Restitution is a general area that includes many concepts, it is basically what?

Answer 13

Just the basis for giving restitution, it includes concepts like: unjust enrichment, disgorgement, constructive trust, equitable lien, replevin, ejectment. Restitution is awarded through one of the many restitutionary remedies

Question 14

What is unjust enrichment?

Answer 14

When retaining a benefit without proper compensation would be wrongfully at the expense of the other. The focus is on whether RETENTION of the benefit would be wrongful, not if the initial RECEIPT or benefit was wrongful.

Question 15

What does it mean that unjust enrichment is usually an optional remedy?

Answer 15

After the plaintiff has established a liability theory, this is usually an optional remedy that can be tacked on. Although sometimes unjust enrichment is the only liability theory when the defendant got a benefit without committing a tort or a contract breach and did nothing wrong, but it would still be unjust to let him keep the benefit without compensating the plaintiff

Question 16

If a plaintiff and defendant made a contract for the plaintiff to buy the defendant’s car for $5000, and the plaintiff gives the defendant $6000 without realizing it, what happens?

Answer 16

The defendant didn’t commit a tort or breach a contract by accepting the money, but the court may consider it unjust enrichment to allow him to keep the extra $1000, so they would order restitution of that money.

Question 17

How does unjust enrichment relate to restitution?

Answer 17

It is the rationale behind giving restitution, it is not a restitutionary remedy

Question 18

What is quasi-contract?

Answer 18

A contract that is implied at law by a court when it is necessary to avoid unjust enrichment

Question 19

What is quantum meruit?

Answer 19

This is not a remedy, but a measurement. It is often used when giving restitution through quasi-contract. It means “as much as he deserves.“ The defendant must compensate the plaintiff for the reasonable value of a benefit that he got even though there was no express contract, because retaining the benefit would be unjust enrichment.

Question 20

If plaintiff was anticipating performance so he made a $500 down payment to the defendant, but the contract ends up being unenforceable, would quantum meruit apply?

Answer 20

No, instead quasi-contract would be used to make the defendant return the $500 to the plaintiff to avoid unjust enrichment. But if the plaintiff believed there was a valid contact and she painted the defendant’s house, but the contract was unenforceable, then quantum meruit would demand that the plaintiff be given the reasonable value of the services that she performed because that’s a benefit the defendant got and it would be unjust to let him keep it without compensating the plaintiff

Question 21

What is an example of quantum meruit?

Answer 21

If a contract between the parties was unenforceable because of impossibility, but the plaintiff can still recover the value of the work he performed under the belief that the contract was enforceable. This avoids the defendant being unjustly enriched at the plaintiff’s expense

Question 22

What is disgorgement?

Answer 22

An order that requires the defendant to surrender to the P all gains that he got that can be traceable to his wrongful conduct

Question 23

What is an equitable lien?

Answer 23

This is the remedy that is used to let the plaintiff become a secured creditor and have a priority claim over certain property

Question 24

What is replevin and ejectment?

Answer 24

Remedies that deal with restoring specific property to the plaintiff or rejecting a trespasser off of the real property. Replevin allows for the physical recovery of personal property from another when the defendant wrongfully gets possession of property through an unlawful taking

Question 25

What is the rationale behind restitutionary remedies?

Answer 25

To recover the benefit that the defendant got, not to compensate for the harm. The goal is just to restore the property to its rightful owner by returning the plaintiff to the position he was in before the wrong, or to disgorge from the defendant any unjust enrichment from the wrong. Sometimes this means that the plaintiff gets more than he lost

Question 26

What is restitution often used for?

Answer 26

Fraud

Question 27

If an embezzler bought land with stolen money, what happens?

Answer 27

He cannot keep the land or any profits from it

Question 28

What are the two main purposes of restitution?

Answer 28

• disgorgement

– recovery of the benefit to the defendant

Question 29

For restitution does it matter if the defendant is a wrongdoer?

Answer 29

No, he could innocently get the benefit

Question 30

What is the first thing you have to find in order to give restitution?

Answer 30

The defendant had to have been enriched or gotten something of value.

Question 31

If a plaintiff and defendant have a contract for the defendant to paint the plaintiff’s house, but before any work is done the defendant tells the plaintiff he will not do it, what can the plaintiff do?

Answer 31

• can sue in damages for breach of contract
  – but she has no restitution claim because the plaintiff never conferred a benefit on the defendant, so there was no gain that was realized. If the plaintiff had paid a down payment to the defendant, she could get it back in restitution because that would be a gain realized by the defendant and it would be unjust for him to keep it

Question 32

What are factors to decide if restitution should be given?

Answer 32

- fairness
– nature of the defendant's wrong
– extent of his contribution
– feasibility of apportionment
– culpability of the defendant

The more culpable the defendant’s behaviour was, the more likely the plaintiff will recover all profits

Question 33

What is the goal of contract restitution?

Answer 33

To return the aggrieved party to the position he was in before he entered the contract. This is done by making the defendant return anything that he got from the plaintiff and making him pay the reasonable value

Question 34

What has to happen before you can get contract restitution?

Answer 34

There has to have been a contract breach

Question 35

If you contract with the defendant to buy his car for $5000 and you make a $500 down payment at formation, and then he says he will not sell the car, what can you do?

Answer 35

• sue for damages caused by the breach [but that is just the difference between the contract price and market price. If $1000 dollars is the market price, then the difference is zero]
  – if you sue in restitution you can get back the $500

Question 36

What is the full performance exception to contract restitution?

Answer 36

If the plaintiff has already fully performed his side of the contract, then he cannot get restitution. He can only sue for damages. I.e.: if you contract with defendant to paint his house, and since you are friends, you give a reduced rate of $2500 when you usually charge $5000, and you paint 2/3 of his house, and then he says he isn’t going to pay you, you can sue him for damages for breach of contract [profit you expected to make on the contract plus the costs spent to date], or you can sue in restitution [reasonable value of the benefit you conferred in painting 2/3 of the house]. BUT if you finish painting the house and the plaintiff refused to pay, you could only sue for damages and not in restitution because of the full performance exception.