Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Mon, 8 May 2006 10:51:53 -0400 |
| Re: |
Waiver of Tort |
Hi Dan,
If the availability of restitution
would have been dependant on the wrong as some may argue with regard
to situation (1) (namely breach by D for which damages are available)
then no restitution could be had in Situation (3) in which at least
I assume that restitution should be allowed, although there is no breach
(it is actually a case of frustration for which compensation are payable).
I don't think the "then" follows from the "if".
It certainly does not follow if gain-based remedies for wrongful acts
are justified by the wrong, while restitution (reversal of a legally defective
transfer) for unjust enrichment does not depend on a wrong. The "if-then"
only works if we assume that all gain-based claims are founded on the
same normative basis, which is the very issue surely, or one of them.
Lionel
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