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The basic principles of restitution

A Jolly Contrarian guide to having and receiving™

Contract quasi-contractquasi-agencytortrestitution

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/ˌrɛstɪˈtjuːʃən/ (n.)

A judicial life-hack to cover the parts of commercial life that the common law traditions of tort and contract somehow contrive to miss.

Restitution — a.k.a unjust enrichment, or money had and received — is a claim made feasible through an imaginative synthesis of long-“forgotten” rules[1] of the common law, dreamt up by Lord Goff[2] to bring justice to little old ladies, welsh hoteliers and others — not, apparently, including financial services conglomerates — who have been dealt a short hand by the cosmic game.

Difficult cases involving such unfortunates (and the odd gambling-addict conveyancer) gave rise to an entire branch of civil law known as restitution, a common lawyer’s duck-billed platypus: an ancient civil action, latterly back in fashion, that sounds neither in contract — there is none — or tort — there has been none — but sits uneasily between them, in its own jurisprudential space, rather like our old friend Bob Cunis: neither one thing nor the other; a sort of law of equity for people who don’t like the law of equity or the floppiness and uncertainty it tends to bring.

The source of some excitement, fear and loathing in the hands of the New York District Court, who in Citigroup v Brigade Capital Management applied the discharge-for-value defense to a restitution claim with rather more enthusiasm than seems warranted. The law in England (see Barclays Bank Ltd v WJ Simms) would lead to a different outcome.

Known also as “money had and received” and “unjust enrichment”, in any case it is not to be confused with unjustified enrichment, which is the compensation plan for those who make it to the C-suite.

See also