Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
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- Remedial Advantages
- Established Categories of Restitution Remedy
- Requirements for Restitution to be Granted
- Restitution in Contract
- Quantum Various Approaches
Restitutionary RemediesBasicsRestitution is both a remedy and a basis of liability. Remedy: conceptualizing award to based on wrongly-acquired benefit by ∆ Restitution as a remedy can be ordered either in monetary form (damages, accounting), or through another type of court order (proprietary remedies, e.g. tracing, constructive trusts)
Overcomes problems of proof e.g. where can establish ∆ benefit but loss is speculative; onus on ∆ to show expenses to deduct from total benefit Strategically, ∆ gain may be larger amount than loss [Whitwham,6 Strand Electric,7 Blake8] May provide in rem relief (as opposed to in personam) in rem may give priority over other creditors, or a claim to specific property-security But see Philips v. Homfray9 May provide some procedural advantages E.g. limitation periods – may expire for ordinary tort, but different for K.
Waiver of tort (for trespass, conversion, etc.) [Whitwham, Strand] Where ∆ derived a benefit from committing a tort, but hasn’t really caused loss, can “waive the tort” and sue as if they were partners. Basically, asking court to treat it as a contract case, where and ∆ were partners in an enterprise, and an implied term was that would get the benefit - otherwise why would have “approved” the act? (They didn’t, really, but that’s the waiver of tort) It’s a fiction, used to give a higher level of award without actually changing the law. This whole fiction has now been abolished, and courts just accept that sometimes there is a restitutionary remedy for torts. Gains from intentional torts (sometimes disguised as punitive damages?) [Whitwham; Broome v. Cassell]10 Requirements [per Broome v. Cassell] 1. Knowledge that it’s against the law 2. Conscious choice to continue because the prospects of advantage outweigh the prospects of loss/penalty Gains from crime [Garland;11 Blake] Breach of fiduciary duty Intellectual property – patents, copyright Breach of confidence [Peter Pan;12 Seager v. Copydex;13 Lac Minerals14] If courts were confined to compensatory (expectation) damages, would be encouraging breach of K by creating an incentive to try, since the worst that would happen is you’d have to keep the original bargain. Courts want to encourage bargaining in good faith. Courts are comfortable with restitutionary remedy where there was a special relationship of confidence – not just any breach of K case will merit these. Necessitous intervention To get compensation for benefits conferred in an emergency – i.e. if there had been time, ∆ would have agreed to pay for the service of saving their life/property Service per quantum meruit (spousal cases) Total failure of consideration Void/voidable Ks (fraud, unconscionability, mistake, frustration) Advance payments/benefits under Ks that fail to materialize Benefits conferred under an unenforceable K [Degleman (1954, SCC)] Domestic property constructive trust cases [Becker v. Pettkus]15 Breach of K? Maybe. Requirements for Restitution to be Granted[per Garland] 1. ∆ must have acquired a benefit The benefit can be positive (property, money, services) or negative (i.e. savings of some kind) Does not have to be pecuniary, but must be quantifiable in monetary terms. Onus on to prove this component. 2. Detriment to (causal connection) Onus on to prove. 3. Must be an absence of a juristic reason for the benefit (i.e. it must be unjust) Most common juristic reasons: gifts, Ks. Also, where required by operation of law. Onus on to prove 4. Other reasons to deny recovery Onus on ∆ to prove this, once has established benefit, detriment and absence of juristic reason. Possible reasons: Public policy Reasonable expectations [see e.g. Garland] Would it be unduly oppressive/surprising for ∆ to have to pay back? 5. Defences ∆ must prove e.g. change of position; delay; estoppel; acquiescence 6. Choice of Remedy Money
Constructive trust 7. Quantification Restitution in ContractCan restitution be a remedy for breach of K? General rule is no, so far. Competing policies: efficient breach vs. unjust enrichment Efficient breach theory: generally, is entitled to compensation for loss, but ≠ for ∆ savings/benefits. [See Bank of America v. Mutual Trust (2002, SCC)]16 But restitutionary motives are often at work in defining “compensation” [recall Groves] Increasingly, in a narrow class of cases, restitution has been made an explicit contractual remedy [Wrotham Park;17 Blake] Limitation: it’s not a general remedy must be a special case for disgorgement (a) as a substitute for equitable relief? (b) as required by public policy? So, basically, it’s a high threshold to get restitution. Note: Wrotham Park is still considered a leading case, but it’s not certain. [see e.g. Surrey Council v. Bredero;18 Jaggard v. Sawyer]19 Where a wrong has resulted in benefit for ∆ at expense, courts conceptualize the transaction as ∆ having avoided a bargain with .
1. Reasonable wayleave, rent [see e.g. Whitwham; Strand Electric; Wrotham Park] Where the wrong consists of use of property, court measures unjust enrichment by the amount ∆ should have paid had they bargained for the use in advance. 2. Opportunity costs 3. Royalty (capitalized) [see e.g. Seager] Note: really, all three of the above categories are about opportunity costs, and are compensatory in nature. Courts just start the quantification by looking at ∆ benefit. Accounting/Disgorgement: 4. Full value of wrongly acquired benefit (through constructive trust) [Lac Minerals] 5. Full gross revenue [see e.g. Blake] Note, though, that courts will often apply a net revenue figure, recognizing that benefit to ∆ ≠ full amount received, but the full amount less expended $/effort. But in Blake there was some serious moral outrage going on, and that impacts the remedy. 6. Account for full net profit [see e.g. Peter Pan; Lever v. Godwin; Phillips v. Homfray] ∆ has taken a benefit from . 7. Apportionment [argued unsuccessfully in Peter Pan; see Edwards v. Lees]20 Punitive: 8. Punitive damages based on comparative profit/savings [see e.g. Townsview;21 Broome v. Cassell] Quantum Meruit Awards: 9. Quantum meruit based on market value (e.g. value received measure often applied in domestic cases Often where contribution from one side is non-monetary (i.e. one spouse/cohabitant bringing in salary, the other providing childcare or other work in the home) Assess on quantum meruit basis and impose a constructive trust over the amount. Labour cost of cooking, cleaning, childcare, but also mgmt aspect. How would the work be priced in the marketplace? 10. Quantum meruit based on joint enterprise (e.g. value survived in domestic cases) In this measure, we don’t get too bogged down in the specific contributions. Ongoing contributions into joint property, assess on the current value (hence “value survived”), and then impose a constructive trust on that current value. Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
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