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The
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its bounda ...
of restitution is the law of gains-based recovery, in which a
court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''Sta ...

court
orders the
defendant In court proceedings, a defendant is a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic Logic is an interdisciplinary fi ...
to ''give up'' his gains to the
claimant A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit A lawsuit is a proceeding by a party or parties against another in the civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit *Civil affai ...
. 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 ''American Jurisprudence'' (second edition is cited as Am. Jur. 2d) is an encyclopedia An encyclopedia (American English American English (AmE, AE, AmEng, USEng, en-US), sometimes called United States English or U.S. English, is th ...
'' 2d edition notes: Restitution may be either a
legal remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law A court is any person or institution, often as a government A government is the system or group of people governing ...
or an equitable remedy, "depend
ng
ng
upon the basis for the plaintiff's claim and the nature of the underlying remedies sought". Generally, restitution and
equitable tracing Tracing is a legal process, not a remedy, by which a claimant demonstrates what has happened to his/her property, identifies its proceeds and those persons who have handled or received them, and asks the court to award a proprietary remedy in respe ...
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
constructive trust A constructive trust is an equitable remedyEquitable remedies are judicial remedies developed by courts of Equity (law), equity from about the time of Henry VIII of England, Henry VIII to provide more flexible responses to changing social conditio ...
or
equitable lien A lien ( or ) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the ''lienee'' and the person ...
. 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 Judgement (or US spelling judgment) is also known as ''adjudication Adjudication is the legal process by which an arbitration, arbiter or judge reviews evidence (law), evidence and argumentation, including legal reasoning set forth by opposing ...
imposing
personal liability Personal may refer to: Aspects of persons' respective individualities * Privacy * Personality * Personal, personal advertisement, variety of classified advertisement used to find romance or friendship Companies * Personal, Inc., a Washington, D ...
to pay a sum of money".
Unjust enrichment In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make rest ...
and
quantum meruit ''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 s ...
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. The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of
unjust enrichment In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make rest ...
. 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.


For wrongs

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 A fiduciary is a person who holds a legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by ...
is widely available but restitution for breach of
contract A contract is a legally binding agreement that defines and governs the rights and duties between or among its parties Image:'Hip, Hip, Hurrah! Artist Festival at Skagen', by Peder Severin Krøyer (1888) Demisted with DXO PhotoLab Clearview ...

contract
is fairly exceptional. The wrong could be of any one of the following types: #A statutory
tort A tort, in common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dict ...

tort
#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.


Example

In ''
Attorney General v Blake is a leading English contract law case on damages for breach of contract. It established that in some circumstances, where ordinary remedies are inadequate, restitutionary damages may be awarded. Facts George Blake was a member of the Secret In ...
'', 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 An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer). The term negligence, on the other hand, pertains to a tort that simply results from the fa ...
s or breaches of
fiduciary duty A fiduciary is a person who holds a legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by ...
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 The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Act In the United States The United States of America (USA), commonly known as the United States (U.S. or US), or America, is a country Contiguous ...

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#REDIRECT United Nations Convention Against Corruption {{Redirect category shell, {{R from move ...
( UNCAC) - 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 organization An international organization (also known as an international institution or intergovernmental organization) is a stable set of norms and rules meant to govern the b ...
- Stolen Asset Recovery Initiative (StAR)


See also

*
Blood money Blood money may refer to: * Blood money (restitution), money paid to the family of a murder victim Films * Blood Money (1917 film), ''Blood Money'' (1917 film), a film starring Harry Carey * Blood Money (1921 film), ''Blood Money'' (1921 film) ...
*
English unjust enrichment lawThe English law of unjust enrichment is part of the English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tr ...
*
Equity (legal concept) Equity is a particular body of law that was developed in the English Court of Chancery. It exists in domestic law, both in Civil law (legal system), civil law and in common law systems, and in international law. The tradition of equity begins in an ...
*
Quasi-contract A quasi-contract (or implied-in-law contract or constructive contract) is a fictional Fiction generally is a narrative A narrative, story or tale is any account of a series of related events or experiences, whether nonfictional ( memoir, biogr ...
* Restitution (theology) *
Legal remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law A court is any person or institution, often as a government A government is the system or group of people governing ...
*
Reparation (legal)In jurisprudence Jurisprudence, or legal theory, is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal systems, Law# ...
*
Reparations Agreement between Israel and West Germany The Reparations Agreement between Israel and the Federal Republic of Germany ( German: ''Luxemburger Abkommen'' "Luxembourg Agreement" or ''Wiedergutmachungsabkommen'' "'' Wiedergutmachung'' Agreement", Hebrew Hebrew (, , or ) is a Northwes ...
, Holocaust reparations *
World War I reparations Following the ratification of article 231 of the Treaty of Versailles Article 231, often known as the War Guilt Clause, was the opening article of the reparations section of the Treaty of Versailles, which ended the World War I, First World War ...
, made from Germany due to the signing of the Treaty of Versailles * Reparations for slavery debate in the United States * Reparations (website) *
War reparations War reparations are compensation payments made after a war War is an intense armed conflict between states, government A government is the system or group of people governing an organized community, generally a State (polity), ...
*
Reparations for slavery Reparations for slavery is the application of the concept of reparations to victims of slavery and/or their descendants. There are concepts for Reparation (legal), reparations in legal philosophy and Reparations (transitional justice), reparations ...
* Slavery reparations scam * The National Coalition of Blacks for Reparations in America *
Reparations (transitional justice) Reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges (see war reparations ...


Notes


Further reading

* * * * {{law Judicial remedies Reparations Transitional justice