Indeterminacy and the Law of Restitution

(ProQuest: ... denotes "strike-through" in the original text omitted.)Squishy. That's been the rap on the law of restitution since before there even was a law of restitution. In Moses v. Macferlan} Lord Mansfield stated that whenever the defendant is "under an obligation, from the ties of natural justice, to refund" the money, the law allows an "action [for money had and received], founded in the equity of the plaintiffs case."2 Lord Mansfield commented that "[t]his kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged."3 As he summarized the point, "In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money."4 That was undoubtedly one of the decisions that the anonymous writer Junius had in mind in his 1770 accusation against Mansfield that "instead of those positive mies, by which the judgment of a court of law should invariably be deteirnined, you have fondly introduced your own unsettled notions of equity and substantial justice."5 Although the law of restitution is now respectable in England, during the early twentieth century English judges seem to have delighted in heaping scom upon the notion that cases could be determined by "that vague jurisprudence which is sometimes attractively styled 'justice as between man and man.'"6 As Thomas Edward Scrutton remarked, "The whole history of this particular form of action has been what I may call a history of well-meaning sloppiness of thought."7 Even someone as friendly to the law of restitution as John Dawson famously remarked that the unjust enrichment principle "has the peculiar faculty of inducing quite sober citizens to jump right off the dock."8At the outset of the project that has now resulted in the Restatement (Third) of Restitution & Unjust Enrichment,9 Reporter Andrew KuIl confronted this problem head on. At the ALI's initial consideration of the project in 2000, he noted the perceived "amorphous" nature of the subject, remarking that many people have felt that "a purported legal principle that necessarily appeals to a shared sense of what equity and good conscience require is untrustworthy."10 Has the effort to make restitution more determinate succeeded, or is the law of restitution still saddled with a degree of reliance on vague concepts of justice that marks it as distinctly different from its cousins, the laws of tort and contract?11One reading the new Restatement is likely to conclude that appeals to vague concepts of justice are characteristic of the law of restitution. Consider the solutions the Restatement offers to the following problems. A person who mistakenly discharged a lien on property seeks subrogation to the discharged lien. Is the remedy available? That depends on whether such relief is "necessary to prevent the unjust enrichment of the other."12 A person who mistakenly conferred a non-monetary benefit on another seeks to recover the value of the benefit. Is the remedy available? That depends on whether such relief is "necessary to prevent unjust enrichment."13 A person who mistakenly improved another's property seeks to recover the value of the improvement. Is the remedy available? That depends on whether such relief is "necessary to prevent unjust enrichment."14 A person who mistakenly made a gift seeks to recover the value of the gift. Is the remedy available? That depends on whether such relief is "necessary to prevent the unintended enrichment of the recipient."15 A person who mistakenly executed a writing that did not express the parties' actual agreement seeks reformation. Is the remedy available? That depends on whether such relief is "necessary to prevent the unjust enrichment of the other."16 In these, as well as numerous other sections of the Restatement, the operative legal mie is expressed with a qualification that relief is available only "as necessary to prevent unjust enrichment. …