The Role of Negligence in the Law of Restitution

Abstract

Lying just beneath the surface of the law of restitution is fault. The fundamental rule on which restitution is based is that an individual may not keep that to which he is not entitled under circumstances that would make his retention of the res — be it money, real property, or something less tangible, such as a release from some obligation — unjust. But to understand this formulation of the basic principle, we must first understand an even more basic one: what makes the retention of the res unjust? This Article discusses one facet of the law of restitution — the role of negligence — to argue that the justness of the defendant keeping the benefit he has received from the plaintiff depends on whether (and to what extent) the parties had an opportunity to contract. Once it is determined whether the parties had that opportunity, the law then determines the degree to which it will excuse the fault of the parties, either in allowing restitution as a cause of action, or in using restitution as a measure of damages. Additionally, this Article considers whether various theories advanced for the law of restitution hold up when their explanations are applied to the way restitution treats negligence. This Article concludes that restitution as a quasi-contractual device best explains the way restitution treats negligence.