Background Historically, there existed legal forms of action where goods were sold or services were provided without a contract / agreed price. Quantum Meruit applied when services were provided without an agreed price. Quantum Valebat applied where goods were sold without an agreed price. Another long-standing form of claim was based on money had and received by the defendant. It […]
General The law on restitution is not fully coherent. Certain circumstances are well established as raising an entitlement to restitution. Most are based on unjust enrichment. The courts have sought to evolve coherent principles of unjust enrichment in recent times. See the section on unjust enrichment. Restitutionary remedies also arise outside unjust enrichment. Proprietary remedies such as tracing, constructive trusts […]
Overview Where a payment is made on the basis of an assumption, which later turns out to be incorrect, there may be a right of restitution or recovery. Most commonly, the failed assumption or expectation will involve a proposed contract. If monies are paid in the expectation that a contract will materialise, but this does not ultimately happen, there will […]
Recovering Assets Where an asset is wrongly taken, it is recoverable under the law of conversion and detinue. These civil wrongs/ torts protects the property rights of the owner. This is not restitution in the strict sense. The right to recover the asset is a property right which holds good against all third parties, other than those who have a […]
Overview Subrogation is an equitable principle (and remedy) which arises where a person has conferred a benefit on another in circumstances where that person has received an unjust enrichment. It most commonly creates an entitlement by operation of law, for a party who discharges another’s debt or obligations, to enforce the rights and interests held by a third person in respect […]
General Limits to Recovery There are limits to recovery under principles of restitution. Where there is a contract, restitution usually has no application. The fundamental breach of the contract may permit the innocent party to choose to set it aside. When this is done, restitutionary remedies may be available. Restitution may be avoided by a contract to the contrary. A […]
Remedies in Restitution Unjust enrichment is not a single area of law. Contract law and tort may afford remedies against unjust enrichment. Recourse against unjust enrichment may be afforded through the law of property, where assets are reclaimed. Damages by way of compensation for breach of contract or tort may also include elements of restitution. Remedies in restitution may be, […]
Invalidating Duress Duress covers a range of types of pressure and influence. It may range ranging from threats or actual direct unlawful violence to the application of other, less direct unlawful pressures. Duress involving the threat of personal violence clearly negates consent and contracts thereby entered. There may be criminal liability. There may be duress against goods. It may arise, […]
Overview The principle of failed expectations applies both to payments received and to works done by the persons whose expectations have failed. Failed expectations may occur in a contractual or non-contractual context. There may or may not have been an expectation of a contract. In the case of payments made, monies are recoverable by way of monies had and received on […]
Total Failure of Consideration The right to restitution, whether by quantum meruit (the appropriate or reasonable amount) or quantum valebat (the value) or by way of monies had and received, may arise where there has been a “total failure of consideration”. This is the technical description, of what might be better described as a total failure of performance. Where one […]
Overview “Free” or voluntary acceptance, in effect, allows restitution where it would be unreasonable to allow a person to retain goods or a benefit accepted or enjoyed without paying or undertaking the corresponding liability. It is presumed unjust that there should be no payment or reimbursement where there is free acceptance. Where goods, benefits or services are freely given and […]
Limited Powers Traditionally, a company was limited by its objects. Companies legislation has removed the ultra vires rule for most companies as and from December 2016. Dedicated Activity Companies remain subject to the rules. There were (and remain for DACs) significant exceptions and protections for third parties dealing with the company. The protections have been updated and restated for DACs. […]
Overview Contribution and recoupment are restitutionary in nature. They are remedies which have a similar effect to restitution for unjust enrichment. Recoupment may arise where the claimant pays the respondent’s debt or obligations. Some element of compulsion is required. The principles of contribution apply where persons have liability in common. This may include co-owners, partners or other joint owners. The […]
General The general principle is that a person who assists another, even in circumstances of necessity, has no legal right of recovery. Recovery by way of restitution may be available in some cases where a person spends money or assists another in circumstances of necessity. There are a number of narrowly defined circumstances in which restitution may be available. Where […]
Breach of Contract A person might deliberately breach a contract, in circumstances where the damage to the other party is less than what he gains, so that he profits from his breach. He might be said to benefit from his wrong. However, it is argued that such breaches are economically rational, justifiable and should be encouraged. This is on the […]
Contract Mistakes & Other Mistakes Many of the circumstances in which restitution is allowed, might be categorised as deriving from a mistake in its broadest sense. A mistake may be a basis for unjust enrichment. It may be the unjust factor allowing recovery by way of restitution. This broader concept of a mistake is discussed later in this section. Where […]
Restitution & Public Bodies Public bodies are subject to the general law. They are accordingly subject in the same way as a private person, to the possibility of restitution on ordinary grounds. Public bodies are usually formed by statute or as companies under a statute. They are usually established with certain objects and powers relevant to their public function. The so-called […]
Enduring Title Where assets such as goods are obtained by fraud, the title does not pass to the wrongdoer. The same principle applies to the other limited categories of case, where the contract is wholly negated. The title endures and may be recovered as such. The claim to take back the asset is a proprietary claim. The right to resume […]