Reviews
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00266 |
| Published date | 01 March 2000 |
| Date | 01 March 2000 |
REVIEWS
Andrew Skelton,Restitution and Contract, Oxford: Mansfield Press, 1998, xviii +
110 pp, pb £23.00.
The scope of this book is narrower than its title suggests. The aim of the author is to
produce a study of restitution following discharge for breach, a situation which is
categorised as one of autonomous unjust enrichment. Thus restitution for breach of
contract, that is unjust enrichment for the wrong of breach of contract, is excluded
from the book’s domain. Both areas are controversial in the context of the relationship
between restitution and contract. This book explores the remedies available in
circumstances when a contract has been discharged for breach and, in particular,
whether the innocent or the defaulting party has a personal claim in unjust enrichment
against the other party for money or non-money benefits. A critical aspect in the
resolution of this question is the relationship of the discharged contract to any
restitutionary remedy. The book explores the argument as to whether and why the
contract price should limit any restitutionary remedy. As regards claims for money,
for example, is it right that an innocent party can escape from a bad bargain? As
regards non-monetary benefits, should the contract price operate as a ceiling on the
restitutionary award? The position of the author on these difficult questions is
somewhat betrayed by several citations of a passage from Burrows, stating that, ‘the
cause of action in unjust enrichment is distinct from, and need not bow down to,
contract’.
The law of restitution has developed a language of its own, not readily accessible to
those familiar with other legal categories which border it. Concepts of incontrovertible
benefit, subjective devaluation, free acceptance, bargained-for benefits, negative
benefits and positive benefits need to be explained if they are to be put in the context
of another legal category such as contract law. To the author’s credit, he gives a clear
explanation in his first chapter. This chapter would, however, have worked better if
the explanations had been given in the context of case-law rather than, as is
predominantly the case, in the context of academic writings. Discussion of case-law in
this crucial chapter is largely consigned to footnote references. This criticism cannot
be levelled at the rest of the book where cogent and lucid analyses of all the important
and relevant cases from England and other common law jurisdictions prompt the
author to establish three main propositions. Whilst one may not agree in entirety with
these propositions, many important points are made in the course of this study.
Chapter Four, in particular, raises some circumstances which should be essential to
delineating between contractual and restitutionary remedies.
In Chapter Four, which is concerned with claims for non-monetary benefits, the
author cites four such convincing circumstances where a restitutionary remedy should
not be limited by the contract price. One is where an innocent party has rendered
services under a contract which he or she has entered into at a discounted price in
order to obtain non-price benefits such as further work or enhanced reputation. This
and the other examples given in the book account for the author’s exhortation that it is
necessary to take into account not just the terms of a contract relating to the contract
price, but all the other terms of the contract (express or implied) and the facts known
or perceived by the defendant at the time that he bargained for the performance.
ßThe Modern Law Review Limited 2000 (MLR 63:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
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