4
1 Andrew Burrows, The Law of Restitution, 2nd ed. (2002), 455.
2 Peter Cane, “Exceptional Measures of Damages: In Search of a Principle,” in Wrongs and Remedies in the Twenty-First Century, ed. Peter Birks (1996), 301.
3 I. M. Jackman, “Restitution for Wrongs,” (1989) 48 Cambridge L.J. 302. By “legal facilities” Jackman means “private property, relations of trust and confidence, and (with some qualification) contracts,” which “require protection against those who seek to take the benefits of an institution without the burdens thereof.” Ibid., 302.
4 Burrows, above n. 1, 480, shows some sensitivity to this problem. He accordingly suggests that gain-based damages might be available in situations where the idea that one should not profit from one’s wrong can be supplemented by additional reasons for restitution, such as the need to protect facilitative institutions and to deter cynical wrongdoing. The difficulty is that these additional reasons no more single out the plaintiff than the consideration they supplement. It is hard to see how a multiplicity of reasons for restitution that are not plaintiff-specific generate a recovery that is plaintiff-specific.
5 The basic idea of this article is similar to the one animating the analysis of the Eingriffskondiktion in German law since the writings of Wilburg and von Caemmerer, that the availability of restitution for an interference with the plaintiff’s right depends on the scope and purpose that the legal order attributes to the right. See B. S. Markesinis et al., The German Law of Obligations, vol. 1, The Law of Contracts and Restitution: A Comparative Introduction (1997), 744–45. This congruence of approach is hardly surprising, since the German approach proceeds from the assumption that both restitution and delict are informed by Aristotle’s notion of corrective justice; see E. von Caemmerer, Bereicherung und unerlaubte Handlung, in Festschrift fuer Ernst Rabel, Band I (1954), 333, 335. Wilburg’s comment that restitution in the Eingriffskondiktion “grows organically out of the mother-right, so to speak of itself” (quoted in John Dawson, Indirect Enrichment, in Ius Privatum Gentium (Rheinstein Festschrift), vol. 2 (1969), 789, 798) is a graphic way of portraying the intimate connection that corrective justice posits between the injustice and the remedy.
6 Lord Goff of Chieveley and Gareth Jones, The Law of Restitution, 7th ed. (2007), 36–006.
7 Gareth Jones, Restitution in Public and Private Law (1991), 77.
8 248 N.Y. 339, 162 N.E. 99 (1928).
9 The Wagon Mound, No.1 [1961] A.C. 388 (P.C.).
10 Above, chapter 2, section 2.
11 See especially Daniel Friedmann, “Restitution of Benefits Obtained through the Appropriation of Property or the Commission of a Wrong,” (1980) 80 Colum. L. Rev. 504; von Caemmerer, above n. 5, 353.
12 Jackman, above note 3.
13 [1883] 24 Ch. D. 439 (C.A.).
14 But see William Swadling, “Phillips v Homfray (1883),” in Landmark Cases in the Law of Restitution, ed. Charles Mitchell and Paul Mitchell (2006), arguing that the usual interpretation is mistaken.
15 W. M. C. Gummow, “Unjust Enrichment, Restitution, and Proprietary Remedies,” in Essays on Restitution, ed. P. D. Finn (1990), 47.