Unjust Enrichment and Wrongful Enrichment

Abstract

Part I of this Article describes the schism in the law of restitution between the quadrationists, who believe that the law of restitution and the law of enrichment form a single square that can be named indifferently from either response or causative event, and the multicausalists, who believe that restitution is the law's response to a number of different causative events. The paper aligns itself with the latter camp, in which, when it comes to the proper identification of the different causative events, there are as many views as there are campers. Most multicausalists nevertheless agree that enrichment is, generically, one of the events which trigger rights to restitution. For them it follows both that there is a law of enrichment and that the law of enrichment is no more than one column in the law of restitution. The question then arises as to how the boundaries of enrichment shall be drawn. Part II argues that the key lies in the exclusivity of categories of causative event and, above all, in the bright line that runs between enrichment and wrongful enrichment. Part III seeks to emphasize that line and to prove the practical necessity of drawing it. Just as some fact situations disclose both a tort and a breach of contract, so some fact situations in which a defendant has received a gain disclose both an enrichment and a wrongful enrichment. That kind of alternative analysis aside, wrongs and unjust enrichments are generic descriptions of distinct categories of causative events, and a wrong does not become an enrichment merely because it enriches the wrongdoer, nor because the victim comes into court claiming the amount of that wrongful enrichment. Those essential propositions were obscured by the 1937 Restatement and appear not to be fully accepted by the Reporter of the new Restatement now in the making. Six specific arguments are advanced to show that the distinction has to be respected. It is important to say at the outset that the first Restatement of Restitution was a magnificent achievement.1 Professor Andrew Kull, whose daunting task it is to be the Reporter of the new Restatement now in the making, says this: This pathbreaking work, for which Warren Seavey and Austin Scott served as Reporters, has by some measures been the Institute's most influential achievement. No other Restatement has created a subject, giving life and form to an entire field of law. Without the Restatement, the constituent elements of restitution might have remained where Seavey and Scott found them: a miscellaneous assortment (part legal, part equitable) of forms of action and remedial devices, familiar in some of their particularized applications but never described or understood as parts of a coherent whole. Yet there is today no English-speaking jurisdiction that does not acknowledge the existence of a body of law known as restitution or (or unjustified) enrichment.2 This is a just tribute. The language of the pre-Restatement law was impenetrable. Named in ways that few people understood, the fragments had acquired a life of their own, moving ever further apart. Only a work of genius could recognize the pattern capable of bringing them together and impose new language to make those principles evident to lawyers generally. It is no discredit to Scott and Seavey that the old language-money had and received, money paid, quasi-contract, waiver of tort, implied contract, constructive trust, and so on-still clings stubbornly to an undeserved persistence in some lawyers' minds. Nor does it take anything from their achievement to say that they did not get everything right. For instance, it is evident that they should not have allowed themselves to give the impression that constructive trusts invariably effected restitution of enrichment.3 A still more fundamental difficulty derives from their decision to present their matter in a manner which, semantically, aligns it with remedial responses to causative events rather than with other categories of causative events. …

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