The Fundamentals Of A Civil Asset Recovery Action - Part 2.
Mondaq Business Briefing › Nbr. 2008, March 2008
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The Fundamentals Of A Civil Asset Recovery Action - Part 2.
Article by Martin Kenney & Elizabeth O'Brien
Restitution and Unjust Enrichment. Restitution has been defined as a body of law in which (a) substantive liability is based on unjust enrichment, (b) the measure of recovery is based on the defendant's gain instead of the plaintiff's loss, or (c) the court restores to the plaintiff, in kind, his lost property or its proceeds. The divergence between the American and English perspectives on restitution is marked. The American Restatement on the law of restitution suggests that a plaintiff will be entitled to restitution in any circumstances where the defendant has been unjustly enriched at the expense of another. In contrast, under the English legal position, there is not necessarily any right to recover money in personam merely because it would be the right and fair thing that it should be refunded to the payer. Entitlement to recovery on the basis of restitution in the English legal system seems to be very much based upon the implied existence of a promise to repay - or, in essence, a contractual obligation of sorts.21 Restitution, more narrowly than tort or contra...See the full content of this document
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