Intent to Charge for Unsolicited Benefits Conferred in an Emergency: A Case Study in the Meaning of "Unjust" in the Restatement (Third) of Restitution & Unjust Enrichment

(ProQuest: ... denotes non-US-ASCII text omitted.)Table of ContentsI. Introduction: The Third Restatement in Historical Context 912II. The Distinction Between Unjust and Unjustified Enrichment 916III. The Location of Our Problem: Somewhere Between the Republic of Restitution and Gift Island 923IV. The Criteria for Having an "Intent to Charge" 928V. A Thought Experiment to Test the Third Restatement' s Preference for the Concept of Unjustified Enrichment 938VI. Conclusion 945I. Introduction: The Third Restatement in Historical ContextThe curriculum of most modern American law schools relegates the law of restitution to the status of a bonbon, so to speak, to be served in other courses at the discretion of the instructor: A sort of exotic hors d'oeuvre or after-dinner mint in classes where the real meat-and-potatoes consists of contracts, torts, or remedies.1 But while our law schools may have slighted this area of the law, the courts never have. As Professor Hanoch Dagan has said, "While restitution receded from the American academic landscape and was marginalized in the law school curriculum, courts continued to develop the doctrine, facing new problems and refining the rules dealing with benefits-based civil liability."2 Thanks to the herculean efforts of Professor Andrew KuIl and his diligent band of advisers, the American Law Institute has at last delivered us the text of a brand new Restatement (Third) of Restitution & Unjust Enrichment (R3RUE).3 It is a monumental achievement. Thankfully, this text manages to take account of many of the new developments to which Dagan refers that have intervened in American private law litigation since 1936,4 when the First Restatement was completed,5 and 1984, when the uncompleted Second Restatement issued its second (and last) tentative draft.6 Whatever impact the new Restatement may have on the future development of the law of restitution, I believe (and hope) that its completion and publication will encourage legal academics to give more visibility in the law school curriculum to this important but much neglected subject.Although a Reporter's Note to the new Restatement states that the taxonomy of "the present Restatement follows the 1937 Restatement without apology,"7 the ALI's official website also declares that the project's name, which includes the words "restitution" and "unjust enrichment," restores the originally conceived title of the First Restatement as a way of emphasizing the fact that "the subject matter encompasses the independent body of law of unjust enrichment, and not simply the remedy of restitution."8 The R3RUE, by loudly proclaiming the inadequately understood legal point that restitutionary remedies are not the same as the substantive law of unjust enrichment, affirmatively invites judges, lawyers and legal academics to address the important question posed by Professor Douglas Laycock several years ago: "What is it that makes enrichment unjust in the absence of some wrong for which the law would impose damage liability?"9I have taught a stand-alone class on restitution and unjust enrichment at regular intervals throughout my academic career. I first learned about the subject at the feet of the great Jack Dawson, whose work in the field still remains very important,10 and who, together with George Palmer, wrote a superb casebook on the subject that has, alas, been out of print for a very long time." As someone who philosophizes a lot about legal themes, the main reason I enjoy teaching this subject so much is that its principal organizing concept contains the word "unjust. …