Quantum Meruit for the Subcontractor: Has Restitution Jumped off off Dawson's Dock?

By Rendleman, Doug | Texas Law Review, June 2001 | Go to article overview

Quantum Meruit for the Subcontractor: Has Restitution Jumped off off Dawson's Dock?


Rendleman, Doug, Texas Law Review


After buying a "fixer-upper" home in Lexington, Virginia, Harriet Homeowner contracted with Prime Contractor to remodel the house. To prepare to replace Homeowner's steam and radiator furnace with a forcedair heating-cooling system, Prime subcontracted with AsbestOut to remove two hundred feet of asbestos-covered pipe from the basement. After AsbestOut completed its removal, Prime exited. AsbestOut sued Homeowner seeking a $4000 money judgment for quantum meruit restitution. Its so-far-uncompensated asbestos removal, AsbestOut insists, has unjustly enriched Homeowner.1

The question you are probably asking-"Has Homeowner already paid Prime?"-I will place to one side for now, but I will deal below with both "yes" and "no" answers.

Introduction: AsbestOut's uncomplicated $4000 lawsuit stands astride one of the fault lines in restitution. Why does it turn out to be what Professor Dan Friedmann calls a "rather intricate" subject?2 On the one hand, lawyers, judges, and scholars perceive restitution's unjust enrichment core to be capable of suppressing injustice across large areas of private law. But, on the other, its bumptiousness has touched the positivist in many, leading them to search for principles of confinement. One of the major themes of this restitution symposium is the necessity of intermediate limiting principles between the spacious generalization "unjust enrichment" and the results in disparate disputes.

This Article's title was inspired by Professor John Dawson's pithy observation about restitution's benefits and risks:

[A] general principle prohibiting enrichment through another's loss appears first as a convenient explanation of specific results; it is an instrument for quite practical and intelligible purposes. Yet once the idea has been formulated as a generalization, it has the peculiar faculty of inducing quite sober citizens to jump right off the dock. . . . The ideal of preventing enrichment' through another's loss has a strong appeal to the sense of equal justice . . . . It constantly tends to become a "rule," to dictate solutions, to impose itself on the mind.3

In this Article, I use AsbestOut's quantum meruit claim to examine the search for limiting principles. But first I will return to the image in Dawson's second sentence above-the heady brew of undiluted unjust enrichment is intoxicating enough to induce "sober citizens" (read "judges") "to jump right off the dock." "Analogies," S.EC. Milsom observed, "always make one point at the expense of another."4 The need to confine the "general principle" of unjust enrichment is the point Dawson emphasizes. In short, by positing an unfortunate dunking in store for the judge who relies on broad unjust enrichment principles, Dawson's analogy supports absolute rules, rules designed to keep the judge "on the dock." The aquatic pratfall that follows a decision based on general principles makes Dawson's point at the expense of another important point: the need for judicial flexibility and creativity.

Although I agree with Dawson's basic idea-the need for intermediate limitations on unjust enrichment-I am skeptical about the absolutism suggested by the view from Dawson's dock. An old saying expresses my view a little better: "Unjust enrichment is a hard dog to keep on the porch." But our dog does not live on the porch. The purpose of restitution sometimes requires it to go "off the porch," to lead the hunt for unjust enrichment. I will propose a frame of reference for restitution disputes that will respect the integrity of limitations yet preserve a safety valve for creative and individual decision making, depending or. the facts and context.

My own approach to restitution is a process-oriented one, influenced by Texas's own Leon Green.5 Law created and administered through courts is a question-asking process. The overarching principles that shape the questions are moral, economic, and administrative. Rules, no matter how moral and efficient, must be capable of administration through the stages in the system of civil justice and workable with different people at different phases of the dispute process. …

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