The Restitution Interest

1. The Restitution Interest
   1. Definition
      1. As a cause of action: similar to contract cause of action, but not the same. The essence of the action is to get the thing or the value of the thing that belongs to the P and is now (or was) in D’s possession. Often used by P’s whose contract with D was for some reason unenforceable; or, may be used by P’s who didn’t even have a contract-like relationship with D.
      2. As damages: damages for breach of contract are said to be justified under the theory of restitution when P’s recovery is measured by the benefit that P’s act conferred upon D.
   2. Bailey v. West
      1. Facts: Δ purchased a horse then discovered it was lame. Δ took the horse to Π’s farm. Π fed and housed the horse and sent Δ a bill which was not paid. Π is suing for restitution. 
      2. Issue: Was there a contract, and what is the damage for breach?
      3. Analysis: 
         1. “Implied in fact:” The source of the obligation is the intention of the parties. Court finds no mutual agreement or “intent to promise” b/w Π and  Δ so as to establish contract “implied in fact.”
            1. D had no prior relationship with Π; Δ told Π he would not be responsible; D did not arrange for horse to be boarded with Π, but arranged for horse to go back to original seller 
         2. “Quasi-contract:” 12 Am. Jur., Contracts, Sec. 6: CB 77. Nothing to do with intention; promise nor privity are required; obligation arises not from consent, but from the law of “natural justice and equity.” Quasi-contracts are not real contracts! Fiction!
            1. Elements of the Quasi-contract(prof. notes these in class): 1) Benefit conferred upon Δ by Π, 2) appreciation by Δ of such benefit, and 3) acceptance and retention by Δ of such benefit under such circumstances that it would be inequitable to retain the benefit without payment to the Π of the value thereof.
            2. Π was acting as a volunteer (prof. notes Court’s use of “volunteer”–which, if one meets the technical definition, is taken outside the realm of being party to a quasi-contract due -most likely- to the “inequitable” provision): if performance is rendered by one person w/out any request by another, it is very unlikely this person will be under a legal duty to pay compensation.
      4. Held: no contract, and since there was no request for payment prior to caring for the horse, no restitution can be paid. (Π volunteered for the job.)
   3. Restatement of Restitution §2
      1. “A person who officiously confers a benefit upon another is not entitled to restitution.”
         1. Recovery is going to be denied by those persons when the benefit has been forced upon them without their will
   4. Law and the Economics of Restitution
      1. Doctor administers first aid to a stranger on the street vs.
      2. Musician playing violin for a woman waiting for a bus
      3. In the common law, the doctor would usually have a legal claim, the musician would usually not. Why?
         1. Posner says that the costs of the voluntary transaction would be prohibitive in the doctor case
            1. Incapacity
            2. Time
               1. No time to discuss terms when someone is bleeding to death
         2. The musician conferred an unbargained for benefit in circumstances when the opportunity costs of a voluntary bargain would have been low
         3. Posner doesn’t persuade the casebook author
   5. Restitution doesn’t replace consideration, but provides a different basis for allowing recovery