An Introduction to the Law of Restitution

An Introduction to the Law of Restitution

An Introduction to the Law of Restitution

An Introduction to the Law of Restitution

Synopsis

This new edition of a landmark study of the law of restitution has been substantially revised and updated. Concentrating on structural principles rather than detailed rules, the book is an invaluable guide to this difficult area of law.

Excerpt

An unintended conjuring trick made Restitution disappear from the common law map. It still has no place in the typical undergraduate curriculum. One aim of this book is to make plain that its absence is no less remarkable than if one of the other core subjects had been omitted, say Contract or Tort. Of course, a gap of that kind tends to be self-perpetuating since teachers and books are not called forth where there is no learning; but the supply of cases never dries up, because the lives of litigants are not controlled by law school categories (though even litigants suffer when their lawyers have a blind- spot). The cases on Restitution are disorderly much as all case-law became disorderly when the discipline of the forms of action was relaxed in the nineteenth century. The main business now is to find the scheme on which the law in those cases can be most elegantly and efficiently arranged. That is what this book tries to do. It is not a textbook but a prolegomenon to a textbook.

A nineteenth-century condition requires a nineteenth-century remedy. The great merit of Austinian positivism was that it required statement and evaluation to be distinct exercises. Austin knew that, morally, the law could be anything from unjust to downright wicked, but he thought that it was essential to state the law before expending energy on its social and moral deficiencies. And, for him, stating the law meant stripping off its merely intellectual errors and presenting it clearly, according to a system which would be economical and rational. He had a passion for eliminating muddles and misperceptions. This book tries to work in that spirit. It does not often say what the law 'ought' to be. And when it does the appeal is to the humdrum values of intelligibility and consistency.

Length has been a problem. The subject is large by any standards, and the kind of argument which is needed in order to investigate its structure is often slow-moving. To keep the length down there have had to be sacrifices. Not every restitution-yielding event has been included, and some which are included have been barely touched on. There have been few incursions into specialist fields. For example, from shipping law there is little on salvage and nothing on general average; and not much has been taken from family law, though the behaviour of wealth within marriage or de facto marriage, and also the law relating to family provision on death, do in some respects answer to restitutionary analysis. But the task of disentangling the restitutionary threads is better suited to a specialised journal than to this type of book. A more serious sacrifice has been the exclusion . . .

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