Academic journal article Melbourne University Law Review

Restatement (Third) of Restitution and Unjust Enrichment by the American Law Institute

Academic journal article Melbourne University Law Review

Restatement (Third) of Restitution and Unjust Enrichment by the American Law Institute

Article excerpt

Restatement (Third) of Restitution and Unjust Enrichment by the American Law Institute (St Paul: American Law Institute, 2011) vol 1, pages v-xxxvi, 1-670; vol 2, pages iii-xxxii, 3-745. Price US$131.00 (hardcover) each. ISBNs 978-0-314-02062-4 and 978-0-314-60468-2.

One unfortunate feature of Commonwealth restitution jurisprudence is its scant use of American scholarship. It is not often appreciated just how much the present law owes to academic work performed in America over the last century, and the wealth of that learning remains significantly under-utilised. The publication by the American Law Institute of the Restatement (Third) of Restitution and Unjust Enrichment ('Third Restatement') (1)--under the direction of reporter Professor Andrew Kull--should, it is hoped, assist in redressing matters.

As is well known, Lord Mansfield in Moses v Macferlan injected into the action for money had and received the Roman notion of a contract 'quasi ex contractu', (2) and used it to structure the action around notions of conscience and the 'right to retain' the monies in issue. However, few efforts at any formal systematisation followed this jurisprudential innovation. The work of Sir Williams Evans, writing in 1802, is probably the most notable attempt, although it was limited to the action in money had and received and did not attempt to draw together the other common counts. (3) Justice Gummow has remarked upon the factors making the milieu in England unfavourable to such a process, (4) and so

it is not at all surprising that the first significant steps towards the creation of restitution jurisprudence were taken in America.

The seminal work was Dean William Keener's 1893 masterpiece, A Treatise on the Law of Quasi-Contracts, (5) in which the author clinically analysed the deficiencies in the concept of a 'contract implied in law' and advanced in its place a doctrine based upon unjust enrichment. (6) Setting, perhaps, a pattern for many future book reviews of contributions on the subject of restitution, a reviewer first noted approvingly the analytical work undertaken, observing that Keener 'brought to the exploding point the uneasy consciousness of many legal writers that the usual division of obligations into those of contract and those of which the violation is a tort is inadequate, if not erroneous', (7) before offering criticism based upon personal differences of opinion as to specific points of private law covered.

The utility of Keener's analysis was enhanced by Frederic Woodward. (8) Woodward's treatise appeared in 1913, a year before the House of Lords delivered its judgment in Sinclair v Brougham, (9) a case that may well constitute the nadir of English jurisprudence on the topic of restitution. Its well-criticised confusion between a contract implied in law and an obligation implied in (or, rather, imposed by operation of) law is all the more surprising given Viscount Haldane LC's quotation of Professor James Ames' observations as to 'the essentially equitable quasi-contracts growing out of the principle of unjust enrichment.' (10)

In 1937, following a period in which the most notable English contribution to the subject may have been Scrutton LJ's oft-quoted remark in Holt v Markham, (11) the American Law Institute published the Restatement of the Law of Restitution ('First Restatement'), (12) for which Professors Austin Scott and Warren Seavey were the reporters. This work, for the first time, collected common threads behind a collection of seemingly disparate corners of the law and arranged them thoughtfully, all the while expressed with the reporters' characteristic lucidity. (13) It appears not often to be appreciated just how much of an influence the First Restatement had upon Commonwealth law. Two illustrations ought to suffice.

The first is Lord Wright's celebrated speech in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd ('Fibrosa'), (14) the reasoning of which is pervaded by the analysis set out in the First Restatement even though the work itself is cited only once. …

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