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Thanks to the High Court of Australia for its scrupulous review of restitution and contract principles in Lumbers v. Cook and to Justice James Douglas and to Neil Foster for commenting and bringing the court’s judgment to our attention.

A thoughtful contribution is Hanoch Dagan, The Law and Ethics of Restitution, Chapter 8 C. at 289-96 (2004). Thanks also to Lionel Smith for remembering my piece in the Texas Law Review.

Lumbers v. Cook clamors for scholars’ measured attention because it lies athwart a major fault line in restitution. Because of the parties’ informal business practices, their cryptic and incomplete evidence, the shifting grounds between trial and appeal, and the differences in civil procedure and bankruptcy-insolvency I found it difficult to discern what ultimate justice requires in the particular dispute.

With respect, however, the statements in the opinions’ paragraphs 54 and 125-26 emphasize contract at the expense of restitution principles in a way that may foreshadow incorrect decisions in future disputes.

Doug Rendleman
Washington and Lee
June 18, 2008

>>> Lionel Smith 6/18/2008 11:00 AM>>>

Although the majority, in the passages quoted by Justice Douglas, attempt to present their ruling as one that rejects unjust enrichment reasoning, to my mind their decision is perfectly in line with the law of unjust enrichment as understood by most commentators, including the late Peter Birks. The HCA has accepted a principle that is most clearly expressed in the German law of unjust enrichment, and which many commentators have suggested should be accepted into the common law.

One thorough recent analysis of the question, somewhat sceptical however that the subcontractor should always be denied a claim, is in D. Rendleman, “Quantum Meruit for the Subcontractor: Has Restitution Jumped Off Dawson’s Dock?” (2001) 79 Texas L. Rev. 2055.

The ordinary processes of legal reasoning ... no, I only smile and resist comment.