The Restatement (Third) of Restitution & Unjust Enrichment: Some Introductory Suggestions

Table of ContentsI. Introduction 899II. The Structure and Key Points of the New Restatement 900III. New Claims 903IV. Conclusion 9091. IntroductionProfessor and Reporter Andrew KuIl has brought reason and order to the law of restitution and unjust enrichment. He has done so with elegant expression and architecture, incisive and insightful comments, and careful analysis and research. With constructive suggestions from his advisers and consulting members of the American Law Institute and other scholars, judges, and lawyers in the United States and elsewhere, and with the careful examination and approval of drafts by the Institute's Council and membership, he has produced a masterpiece, the Restatement (Third) of Restitution & Unjust Enrichment.1 He has reestablished the subject as as a crucial building block of the law along with Contracts and Torts.In this Introductory Comment, I will first summarize the structure and key points of the new Restatement and then, using two examples, examine briefly whether and how it might be used to address new claims.2II. The Structure and Key Points of the New RestatementThe General Principles: The first and central principle is that "[a] person who is unjustly enriched at the expense of another is subject to liability in restitution."3 This principle is not a recipe for unbounded liability. There are basic limiting principles: A person who obtains a benefit without paying for it (for example, the donee of a gift) is not necessarily liable for restitution.4 A claimant's rights may be limited by a valid contract; restitution does not authorize an end-run-around contract.5 A person who confers an unrequested benefit voluntarily will usually not be able to recover in restitution;6 and the law will not impose liability on an innocent recipient to a forced exchange,7 especially in the United States where we still prize personal autonomy and do not appreciate undue interference with our freedom to make choices. The enrichment must be "unjustified" under the law, not simply "unjust" because you as a judge, scholar, or lawyer might think so.8A corollary principle applies that "[a] person is not permitted to profit by his own wrong."9 Whether the defendant's conduct is "wrongful" will ordinarily turn on principles outside the scope of the Restatement.10The Restatement also makes clear that restitution may be legal or equitable or both.11 A claimant entitled to a remedy for unjust enrichment need not demonstrate the inadequacy of available remedies at law.12 The term "restitution" connotes both liabilities and remedies for unjust enrichment.13 The term does not connote only a remedy.Throughout the Restatement, the Reporter includes comments that not only explain the blackletter but also provide helpful guidance.14 For example, with regard to torts, the Restatement comments that "[restitution is the law of nonconsensual and nonbargained benefits in the same way that torts is the law of nonconsensual and nonlicensed harms";15 with regard to contracts, that "[cjontract is superior to restitution as a means of regulating voluntary transfers because it eliminates, or minimizes, the fundamental difficulty of valuation."16 The Reporter wisely advises you to avoid the temptation of formulaic checklists,17 which if you are not careful, could turn into formulaic jury instructions that advance neither comprehension nor clarity.Liability in Restitution: The law of restitution and unjust enrichment sometimes provides an independent ground for liability, for example, in cases of mistake, and often provides a supplemental or alternative ground for liability, for example in cases of tort or breach of contract. …