The Volokh Conspiracy

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Volokh Conspiracy

Virtue is its own reward


As my new book explains, restitution is a kind of legal claim, not just a remedy for claims of other kinds. In the case of the casino (Tuesday) we saw one reason why a claim under the law of restitution can be useful: The gains from a wrong may be greater than its costs, and you want the gains.

But a completely different problem can arise as well. The defendant may have committed no wrong—no theft, no breach of contract, no badly driven car—yet the facts cry out for a return of the defendant's gains. I owe you $1,000. I mistakenly send it to someone else whose last name is the same as yours. Am I required (or are you required) to accept this as a case of bad luck? What if it wasn't bad luck, but instead was the result of gross carelessness on my part?

Either way the courts always have thought it clear that the money has to be returned, but the most familiar rules of law don't explain why. It's not a contract case; whoever got the money has no contract with me or, so far as we know, with anyone else in the picture. Accepting money that arrives out of nowhere isn't a tort or crime, either. So when I sue to get back the $1,000, the suit can only be called a claim for restitution. (Hey, but what if the recipient has spent the money, or someone has stolen it from him?)

Restitution is also the name of the claim when I perform surgery on you in an emergency and you aren't in condition to consent. Yet the same claim fails when I wash the windshield of your car without asking. That's because the law of restitution has rules about when you can recover for a benefit that you confer on someone else. You have to show that negotiating wasn't feasible, that there's no doubt the recipient would have wanted the benefit, and that the value of the benefit can be measured with a fair degree of certainty.

A fun example of a close case: An employee of Dean Witter invites P to join a scheme to defraud the firm. P doesn't report this to Dean Witter because he worries that he won't be believed (he doesn't work there himself) and he fears the corrupt employee. Instead P goes along with the scheme until he has solid evidence of a crime, then reports it. The corrupt employee goes to prison; P goes into a witness protection program with a much-reduced income. Can P win a restitution claim against Dean Witter?

The court hearing those facts thought not. Courts sometimes are game to allow recovery by amateurs who rescue property. And there was no doubt that P saved Dean Witter a lot of money—had in fact "rescued" the firm's property. But the court said he didn't have a satisfactory excuse for failing to talk to Dean Witter before undertaking to collect the evidence. Since he had a chance to proceed consensually but didn't, he was just a volunteer—and so was left with the consolation that virtue is its own reward.

These and other mysteries of restitution law are all discussed in this new book.