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Previously, I wrote asking for ideas relating to 2 areas:

1. The nature of a quantum meruit as a remedy - particularly for a total failure of consideration.

2. Whether a contractual ceiling should be seen as appropriate within the enrichment context of restitution.

In a forthcoming issue of the Newcastle Law Review, I suggest an example where these issues may become important : You have a valid contract to build a house with me for say $100,000. I make full payment up front. Halfway through construction, I breach the contract and you terminate. Can you recover in restitution and if so what is the quantum of the remedy?

If the reverse situation had occurred (full house built , half payment), it would seem that as counter-restitution is easy , the money would be returned and a quantum meruit awarded for the value of the building. It seems in this case of a non-monetary benefit that determining the quantum of counter-restitution (to make counter-restitution) should not be that difficult. That is, why should it be any more difficult to value half a house than a whole house. If the valuation of the whole house is made on the basis of a quantum meruit (in making restitution in the case of a complete house) why should it be difficult to make counter-restitution for the quantum meruit of half a house? Thus, if the quantum meruit is an acceptable remedy surely it makes counter-restitution easy in these cases? Indeed, acceptance of such a doctrine would begin to unify this area of restitution by drawing free acceptance in with a doctrine of partial failure of consideration.

The second issue then becomes of much importance - as if a contractual ceiling is to be employed then (as long as the remedy is breach-sensitive) this remedy will not really lead to any radically different results.

Andrew Tettenborn commented in reply that there is a need for a contractual ceiling in cases (such as above) of a valid contract to avoid subverting contractual expectations. Indeed without a contractual ceiling, these expectation would be subverted. But shouldn't the central question be restoring an unjust enrichment rather than protecting expectations? Richard Sutton , in a reply, suggested that an issue which may arise in cases like this is whether the cause of action should be characterised as restitutionary or as one in contract. Once restitution is accepted why should contractual notions limit the claim. I suggested that the enrichment question should be considered in a qualitative sense (this goes to protect the principle of free choice) and only then the extent of the remedy should be considered. I suggested that if qualitative enrichment has been established, the court should look at the objective value of the benefit. Indeed, as was pointed out to me, the contract price may not even represent the Defendant's subjective opinion of value, as the may be a substantial consumer surplus. The contract price should be a relevant circumstance in determining the quantum meruit but once enrichment is established it seems that there is no reason to limit recovery to the contract price.

Thanks to all for their comments, any replies appreciated.

James Edelman
Student University of Western Australia