of restitution is the law of gains-based recovery, in which a
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accord ...
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdi ...
to ''give up'' their gains to the claimant
. It should be contrasted with the law of compensation
, the law of loss-based recovery, in which a court orders the defendant to ''pay'' the claimant for their loss.
'' American Jurisprudence
'' 2d edition notes:
Legal vs Equitable Remedy
Restitution may be either a
A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its ...
or an equitable
remedy, "depend ng
upon the basis for the plaintiff's claim and the nature of the underlying remedies sought".
Generally, restitution and equitable tracing
is an equitable remedy when the money or property wrongfully in the possession of defendant is traceable (i.e., can be tied to "particular funds or property"). In such a case, restitution comes in the form of a
A constructive trust is an equitable remedy imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enri ...
or equitable lien
Where the particular property at issue cannot be particularly identified, restitution is a legal remedy. This occurs, for example, when the plaintiff "seeks a judgment
imposing personal liability
to pay a sum of money".
''Quantum meruit'' is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".
In the United States, the elements of ''quantum meruit'' are determined by ...
are sometimes identified as types of a disgorgement legal remedies.
This type of damages restores the benefit conferred to the non-breaching party. Put simply, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract. There are two general limits to recovery, which is that a complete breach of contract is needed, and the damages will be capped at the contract price if the restitution damages exceed it.
Differing Views on Restitution
The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment
. However, the view that restitution, like other legal responses, can be triggered by any one of a variety of ''causative events'' is increasingly prevalent. These are events in the real world which trigger a legal response. It is beyond doubt that unjust enrichment and wrongs can trigger an obligation to make restitution. Certain commentators propose that there is a third basis for restitution, namely the vindication of property rights with which the defendant has interfered. It is arguable that other types of causative event can also trigger an obligation to make restitution.
Imagine that A commits a wrong against B and B sues in respect of that wrong. A will certainly be liable to pay compensation to B. If B seeks compensation then the court award will be measured by reference to the loss that B has suffered as a result of A's wrongful act. However, in certain circumstances it will be open to B to seek restitution rather than compensation. It will be in his interest to do so if the profit that A made by his wrongful act is greater than the loss suffered by B.
Whether or not a claimant can seek restitution for a wrong depends to a large extent on the particular wrong in question. For example, in English law, restitution for breach of fiduciary duty
is widely available but restitution for breach of
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
is fairly exceptional. The wrong could be of any one of the following types:
* A statutory
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
* A common law tort
* An equitable wrong
* A breach of contract
* Criminal offences
Notice that (1)–(5) are all ''causative events'' (see above). The law responds to each of them by imposing an obligation to pay compensatory damages. Restitution for wrongs is the subject which deals with the issue of when exactly the law also responds by imposing an obligation to make restitution.
In '' Attorney General v Blake
'', an English court found itself faced with the following claim. The defendant had made a profit somewhere in the region of £60,000 as a direct result of breaching his contract with the claimant. The claimant was undoubtedly entitled to claim compensatory damages but had suffered little or no identifiable loss. It therefore decided to seek restitution for the wrong of breach of contract. The claimant won the case and the defendant was ordered to pay over his profits to the claimant. However, the court was careful to point out that the normal legal response to a breach of contract is to award compensation. An order to make restitution was said to be available only in exceptional circumstances.
To reverse unjust enrichment
Cases of intentional tort
s or breaches of fiduciary duty
often allow for claims of unjust enrichment, as well as cases of statutory torts
and breaches of contract. A plaintiff can even have a claim in unjust enrichment when there is no other substantive claim.
In the United States, the Uniform Commercial Code
("UCC") entitles a buyer who defaults restitution of the buyer's deposit to the extent it exceeds reasonable liquidated damages or actual damages. If the contract does not have a liquidated damages clause, the UCC provides a statutory sum: 20% of the price or $500, whichever is less, and the buyer who defaulted is entitled to restitution of any excess.
United Nations level
* The United Nations Convention against Corruption
) – Working Group on Asset Recovery
* The UNCAC Coalition of Civil Society Organisations
The World Bank
The World Bank Group (WBG) is a family of five international organizations that make leveraged loans to developing countries
A developing country is a sovereign state with a lesser developed industrial base and a lower Human Developm ...
– Stolen Asset Recovery Initiative (StAR)
* Blood money
Equity (legal concept)
Equity is a particular body of law that was developed in the English Court of Chancery. Its general purpose is to provide a remedy for situations where the law is not flexible enough for the usual court system to deliver a fair resolution to a cas ...
* Restitution (theology)