Academic journal article Washington and Lee Law Review

A Sin of Admission: Why Section 62 Should Have Been Omitted from the Restatement (Third) of Restitution & Unjust Enrichment

Academic journal article Washington and Lee Law Review

A Sin of Admission: Why Section 62 Should Have Been Omitted from the Restatement (Third) of Restitution & Unjust Enrichment

Article excerpt

Table of Contents

I. Introduction ................................................................................ 1203

II. The Tension Generated by Section 62 in General ...................... 1204

III. The Illustrations in Section 62 Are Either Wrong or Explained by Other Sections ...................................................... 1207

IV. The Cases Inadequately Support the Illustrations ...................... 1216

V. Conclusion .................................................................................. 1226

1. Introduction

We must not say that every mistake is a foolish one.1

In this Article I first argue that Section 62 of the Restatement (Third) of Restitution & Unjust Enrichment sits in tension with the principles expounded in the rest of the work. I then try to show that this tension is mostly unnecessary because the majority of the cases covered by Section 62 could be either (1) explained by the rules of other sections or (2) dismissed as quaint products of a bygone era dominated by a robust conception of equity. I conclude that the Section should not have been included in the Restatement. However, in fairness, I must acknowledge that a reporter, striving to create a comprehensive Restatement, faces constant pressure to accommodate more cases, even though he may disagree with the reasoning within the cases. Hence, overinclusion is to be expected. Still, the inclusion of Section 62 remains a mistake, albeit not a foolish one.

My criticism of Section 62 is limited to the illustrations discussed and the cases referenced in Comments a-b. Comment c deals with limitations on the remedy a plaintiff receives in a restitution suit. It is not clear why this aspect of calculating the plaintiffs recovery is placed in a section ostensibly dealing with defenses to a claim of unjust enrichment. Moreover, Section 49' s rules for calculating recovery, which include a mie that the measurement of recovery varies with the culpability of the defendant, seem to render this portion of Section 62 redundant. Nevertheless, a full explication of these criticisms of Comment c would tread too far from the criticism of Comments a-b to merit discussion in this paper. Hence, when I write of Section 62, I mean to refer to that Section sans Comment c.

II. The Tension Generated by Section 62 in General

Section 62 states:

Even if the claimant has conferred a benefit that results in the unjust enrichment of the recipient when viewed in isolation, the recipient may defend by showing some or all of the benefit conferred did not unjustly enrich the recipient when the challenged transaction is viewed in the context of the parties' further obligations to each other.2

This raises the following question: Why is "no unjust enrichment" a defense to an allegation of unjust enrichment as opposed to a proper answer? Kull responds by explaining:

[T]he practical application of the present rule is to [cases] . . . when the claimant alleges facts supporting a prima facie claim in unjust enrichment . . . but the recipient is able to show that the resulting enrichment is not unjust in view of the larger transactional context within which the benefit has been conferred.3

Hence Section 62 is not merely an assertion that the plaintiff fails to state a claim, but a defense available only in specific circumstances.

This general response implies that any case covered by Section 62 will sit in tension with whatever sections give rise to the "prima facie claim in unjust enrichment." The strength of the prima facie claim that Section 62 denies varies with each case, but each case will create at least some tension with other sections. Thus, by Kull's own lights, Section 62 serves as a repository for cases with results that seem incongruent with those found in other sections.

It would be troublesome enough if Section 62 were merely a repository for misfit cases; however, the situation is much worse. …

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