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The Law of Restitution - Essay Example

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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…
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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
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