THE PROVINCE OF THE LAW OF RESTITUTION
AbstractAlthough the law of restitution is one of the most dynamic fields in the modern common law, there is still no stable analytical framework or terminology in the field. In this article the author attempts to remedy this by providing an overview of the subject. He argues that "unjust enrichment" and "restitution" are not synonymous, rather, "restitution" is a legal response to the establishment of the cause of action in unjust enrichment. Next the author discusses how certain other causes of action such as the breach of a fiduciary duty, allow the plaintiff to claim any gain made by the defendant. The author argues that these "restitutionary" remedies have nothing to do with the cause of action in unjust enrichment and further that they should not even be considered a form of restitution, since there is no requirement that the gain being stripped from the defendant came from the plaintiff. Finally, the author proposes a tripartite scheme for the classification of private law responses compensation requires the defendant to give to the plaintiff what the plaintiff has lost irrespective of any gain made by the defendant; disgorgement requires the defendant to give to the plaintff what the defendant has gained irrespective of any loss suffered by the plaintiff, and restitution, the logical combination of these two, requires the defendant to give to the plaintiff the gain which the defendant has made at the expense of the plaintiff.
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