The Province of the Law of Restitution

Although the law of restitution is one of the most dynamic fields in the modern common law, there is still no stable analytical framework or terminology in the field. This chapter argues that "unjust enrichment" and "restitution" are not synonymous; rather, "restitution" is a legal response to the establishment of the cause of action in unjust enrichment. It proposes a tripartite scheme for the classification of private law responses: compensation requires the defendant to give to the plaintiff what the plaintiff has lost, irrespective of any gain made by the defendant; disgorgement requires the defendant to give to the plaintiff what the defendant has gained, irrespective of any loss suffered by the plaintiff; and restitution, the bgical combination of these two, requires the defendant to give to the plaintiff the gain which the defendant has made at the expense of the plaintiff.