Translocations and Inertia

The first word of my title comes from the Reporter's Note to Section 66 of Restatement (Third) of Restitution & Unjust Enrichment - hereafter "the Restatement."1 The word represents one of two thoughts I have about modifying the Restatement. My first thought is to situate Sections 66 and 67 near the beginning of the Restatement rather than in Part IV, "Defenses to Restitution." For reasons that will appear later, I entertain no hope that many readers can be persuaded of the merit of those translocations. I do hope, however, that some number will be attracted by my second thought - amendments to Comments to Sections 66 and 67. Anyone attracted by that idea might be attracted also by the thought of translocation, for the two are intimately related. But my expectations are low. Given that, this Article is short; anything but brevity would be witless.Sections 66 and 67 are titled, respectively, "Bona Fide Purchaser" and "Bona Fide Payee." Before the Restatement was finalized, these sections were titled "Purchase for Value" and "Payment for Value," respectively. It makes sense not to situate these topics among the elements of a restitution claim - as if to say "[ajbsence of purchase for value and of payment for value" - and to designate purchase and payment "defenses." To treat these two matters as defenses indicates that a party relying on one of them must come forward with supporting evidence, on pain of making restitution otherwise owed. It cannot be fair, in any ordinary circumstances, to place on a restitution claimant the burden of producing evidence of what is not only a negative, but also of a transaction to which the claimant was not a party. It is possible for the claimant to have been a party to the decisive transaction, of course. That was the situation in a leading case about payment for value, Merchants' Insurance Co. v. Abbott? Even so, however, the other contestant will usually have better access to evidence of the character ofthat transaction. As for the burden of producing evidence, let all that be conceded. As for the burden of persuasion, the fairer placement is not so clear.Whatever one concludes about burdens of proof, one's conclusion does not necessitate the Restatement label "Defenses" for either purchase or payment. That is, mies about those burdens could be stated so as to conform to common sense and fairness, even if the "Defenses" label were dropped and the absence of large classes of purchases and payments were made a component of a restitution claim.Consult certain other Restatements, relatively recent, and one will find a gulf between the uses of "defense" therein. In the Restatement (Second) of Contracts,3 the conception hardly appears, being subsumed largely in that of discharge. Burdens of proof are mentioned dismissively and otherwise rarely. On the other hand, the Restatement (Third) of Suretyship & Guaranty is rife with matters of "defense," including that of performance of the underlying obligation by the principal obligor.4 The "defense" gulf is hard to explain. Say, however, that its infusion is appropriate, and that discharge is a mere circumlocution. It does not follow that defenses merit a large place in a Restatement about restitution. The difference is that claims in restitution depend, more largely than claims in contracts - and in its affiliates suretyship and guaranties - on judicial largesse. By and large, contract liabilities depend on the advertent activity of promise making, whereas restitutionary entitlements depend commonly on inadvertent activity by the claimants. (The best instance of a claimant's inadvertence is the making of a payment by mistake. Yielding to coercion is at the other end of the scale.)Generally, then, a person making a claim in restitution might well be expected to circumvent obstacles that are not in the path of a contract claim. As expressions of that principle, one might well say that "purchase for value" and "payment for value" are not obstacles to be surmounted - defenses - but are to be circumvented as elements in stating the claim. …