Nobody downloaded yet

The Law of Restitution - Essay Example

Comments (0) Cite this document
Summary
The Law of Restitution Is the Law Based on the Principle of Reversing a Defendant’s Unjust Enrichment at the Claimant’s Expense Name: Institution: 1. Introduction The law of restitution has generated a lot of interest from researchers and academics in the globe in the recent past…
Download full paperFile format: .doc, available for editing
GRAB THE BEST PAPER95% of users find it useful

Extract of sample "The Law of Restitution"

Download file to see previous pages This implies that the focus of restitution is on the defendant rather than the claimant. There have been scholarly debates on the threshold for a case to be considered as falling under the law of restitution. This is because previously, cases of unjust enrichment have been treated as falling under the law of quasi contract. However, according Meyers (2009), there are four elements that place a case outside the law of tort and contract. The first aspect is that a benefit is received by a party B and the benefit may be in form of money or services. The benefit is received at the expense of party A. Then it should be ascertained that there is an unjust factor that requires that the benefit be reversed. Finally, if B cannot point to any relevant defence, the case is considered to warrant restitution. Restitutionary remedies fall into two categories. Personal restitutionary remedies restore to the claimant the value of the benefit that the defendant had received. This means that the defendant is liable for the benefit itself. For instance if a defendant received one million pounds from the claimant, then under restitution, the defendant is liable to pay a sum of one million pounds back to the claimant. The restitution remedy creates a creditor –debtor relationship between the claimant and the defendant. The second category of restitutionary remedies is that of proprietary remedy. ...
The claimants interest to the property ranks above the other creditors of the defendant and hence the claimant is likely to recover the property if the defendant becomes insolvent ( Garry, 2008). Restitution is considered to be mauti-causal. The first category of restitution is the restitution for unjust enrichment. This involves reversing of gains by a defendant obtained in an unjust way. The second category on restitution is known as restitution for wrong doing. For example, when a defendant commits a tort against the claimant, the remedial assessment is done in reference to the defendant’s gain and not necessarily in reference to the claimant’s loss. The claimant has the proprietary right to a property, whether it existed previously or made to exist by operation of law ( Howard and Cameron, 2008). This paper aims to outline the legal principles that relate to the laws of restitution. It also aims to analyze existing case laws on restitution and ascertain the scope and implications of this law. The paper outlines the recent developments in application of the law of restitution and the future trends. It is necessary to appreciate the impact of laws on the citizens and the relationship between common law and related statutes is also considered in depth. Restitution is considered as a universal phenomenon and therefore it is necessary for analyzing the application and implementation of the laws of restitution across various jurisdictions. The paper also aims to show the essence of restitution law in the dispensation of justice. 2. Grounds of Restitution 2.1. Unjust Factors An action for restitution does not require any loss to be suffered by the claimant. The major focus in restitution cases is the benefit that the defendant received. Therefore, it is arguable in ...Download file to see next pagesRead More
Cite this document
  • APA
  • MLA
  • CHICAGO
(“The Law of Restitution Essay Example | Topics and Well Written Essays - 2500 words”, n.d.)
The Law of Restitution Essay Example | Topics and Well Written Essays - 2500 words. Retrieved from https://studentshare.org/law/1448576-ypthe-law-of-restitution-is-the-law-based-on-the
(The Law of Restitution Essay Example | Topics and Well Written Essays - 2500 Words)
The Law of Restitution Essay Example | Topics and Well Written Essays - 2500 Words. https://studentshare.org/law/1448576-ypthe-law-of-restitution-is-the-law-based-on-the.
“The Law of Restitution Essay Example | Topics and Well Written Essays - 2500 Words”, n.d. https://studentshare.org/law/1448576-ypthe-law-of-restitution-is-the-law-based-on-the.
  • Cited: 0 times
Comments (0)
Click to create a comment or rate a document

CHECK THESE SAMPLES OF The Law of Restitution

Remedies and restitution

...International Galleries [1950] 2 KB 86 Anglia Television v Reed [1971] 3 All ER 690 The Wagon Mound (No 2) [1966] 2 All ER 709, PC X v Bedfordshire CC [1995] 3 All ER 353, HL Three Rivers District Council v Bank of England (No.3) [2000] 3 All ER 1, HL A-G Ref (No 3 of 2003) [2005] 4 All ER 303 SUGGESTED REFERENCES Peter Birks, Unjust Enrichment (2nd edn, OUP 2005). Andrew A. Burrows, The Law of Restitution (2nd edn, Butterworths 2002). Andrew A. Burrows, Remedies for Torts and Breach of Contract (3rd edn, OUP 2004). Steve Hedley, Restitution: Its Division and Ordering (Sweet and Maxwell 2001). Philip Henry Pettit, Equity and the Law of Trusts (10th edn, Butterworths...
5 Pages(1250 words)Essay

Cases and Materials on the Law of Restitution

In normal parlance, English did not cognize a law of restitution footed on the cannons of reversing unjust enrichment. It is to be noted, the passing comment made by the great judges like Lord Wright in Fibrosa and Lord Mansfield in Moses v Macferlan was mostly uncared for the restitution till 1966. (Gilliker 2007:101). Goff and Jones in 1966 published “the Law of Restitution” which assaulted the customary English approach and tried to show that, looking across both equity and common law, there is a coherent English law of restitution, which is footed on the cannon of putting back unjust enrichment. The above authors viewed the law of restitution as belonging alongside tort and contract as a third branch of the law of...
9 Pages(2250 words)Assignment

Israel Settlements and the Issue of Palestinian Restitution

...Israel Settlements and the Issue of Palestinian Restitution The problem of what to do with so many people when you've got such a small amount of land has been the bane of Palestine for centuries. The Jewish Diaspora lessened the problem temporarily, but a full scale movement of Jews from Europe to the Palestine began to rise in the latter half of the 19th century. By the beginning of World War I there were already 80,000 Jews in the area (Mansfield, 160). In 1936 Lord Peel led an investigation to examine the question of Palestine. The final recommendation called for establishment of a Jewish state in region totaling less than a fifth of the totality of Palestine. The rest of the area would have been linked to Transjordan... but for...
6 Pages(1500 words)Essay

Law - Restitution

...September 20, 2006 A COMPARATIVE STUDY OF THE DOCTRINE OF FREE ACCEPTANCE I. Introduction The road towards accepting free acceptance as an iron-clad principle in the law of restitution may appear tantalizing to some, but as many legal scholars have pointed out, it is a road fraught with many dangers. Indeed, even the larger fulcrum on which it rests – the broad concept of unjust enrichment – has been the source of vociferous disagreement. So murky are the waters that judicial acceptance of the concept through the years has been less than overwhelming. The farthest it has reached, according to Hedley1 is this: a considerable number of judges now recognize that there is an important subject called...
27 Pages(6750 words)Essay

Remedies and Restitution: Justifying Punishment

...of Myra Hindley about her involvement in other murders was not considered because the sum of offence performed by her contributed to a grave crime and the severity of crime increased. Due to the intensity of the crime and to justify the appropriateness required for the expression of deterrence and retribution Myra Hindley’s case failed and the case was dismissed. 5 Many lawyers feel that restitution leaves a lot of blank and undefined spaces and there are no adequate references that justify the idea. Restitution is either unknown, misunderstood or ignored in law. These are some of the reasons why restitution is unappealing and holds the position of a fading discipline...
10 Pages(2500 words)Essay

UK REMEDIES AND RESTITUTION

...Compensation Culture is highly prevalent in English society today. Not the handiwork of one but many, including those finicky plaintiffs who under the garb of minor irritants prefer to invoke the power of law and sue other people over trivial matters; the lawyers who under the influence of monetary gains tend to encourage the prospective litigants to sue other people over minor issues and seek compensation from the courts and lastly the legislature who could amend the existing laws and incorporate various checks within the given legal system so that non-serious litigants and habitual litigants would be discouraged and only genuine grievance would be catered to by the judiciary and in the process saving a...
3 Pages(750 words)Essay

Remedies and Restitution Assignment

...Today, talk of blame culture or compensation culture features prominently in discussions concerning negligence law. In Atiyah’s “The Damages Lottery”1, he expresses dissatisfaction with the present system of awarding damages for personal injury claims and puts forward the argument for replacement of the damages lottery, with a no fault based compensation scheme and increased role of insurance. Atiyah’s arguments are further rooted in a growing academic perception of blame culture and compensation culture permeating negligence claims.2 In this paper I shall undertake a critical review of this topic by considering the concept of the blame and compensation culture and evaluating Atiyah’s proposals regarding the...
7 Pages(1750 words)Essay

What changes would you make to the English law of restitution Explain why you think these are desirable, but also identify any potential disadvantages that might result from them

...What changes would you make to the English law of restitution? Explain why you think these are desirable and also identify any potential disadvantages that might result from them. 1. Introduction The law of restitution is rooted in the concept of restoring gains, which would result in unjust enrichment of the defendant. Accordingly, the central objective of restitution is to remove from a defendant the accruing of increased wealth or benefit, which the law prescribes that the defendant is not being entitled to1. Furthermore, the basis of returning the “unjustified” benefit is rooted in the principle that “it would be wrong to allow him...
12 Pages(3000 words)Essay

SCOTS LAW - commercial law

...Scots Law - Commercial Law al Affiliation) Scots Law - Commercial Law: Might the regime governing a buyer’s remedies for defective goods be improved? Scots law is the jurisprudence of the inhabitant of Scotland. Scotland though is part of the United Kingdom; its legal system is autonomous. It has its own laws with courts. The law of Scotland originates from a large number of sources; laws in Scotland are totally different from those of other parts of the United Kingdom. The varied sources from which this law originates include; Legal principles and the Roman law Scots...
5 Pages(1250 words)Essay

Restitution

...Law Restitution Introduction United s Courts define civil cases as a federal caseinvolving a legal dispute between two or more parties. A civil action commences after a party to a dispute files a complaint, and they are required by the state to settle a fee. In case of a plaintiff who is unable to pay the price, they may file a request, allowing them to proceed in forma pauperis. The fee is waived once the request is granted. To better understand how the civil litigation process is conducted, this paper will discuss in details three civil lawsuit cases and finally come up with a conclusion. Case Study 1 (St. Clair, 2004) On October 15,1999, Liam Youens a resident of New Hampshire, shot and killed a young...
3 Pages(750 words)Essay
sponsored ads
We use cookies to create the best experience for you. Keep on browsing if you are OK with that, or find out how to manage cookies.

Let us find you another Essay on topic The Law of Restitution for FREE!

Contact Us