Restitution
Contracts – Prof. Merges
Jan. 31, 2011
Restitution
Cotnam v. Wisdom
• Procedural history?
Cotnam v. Wisdom
• Procedural history?
• Plaintiff wins below (jury trial)
• Judgment below reversed and
remanded
Cotnam v. Wisdom
• What is an “intestate”?
Cotnam v. Wisdom
• What is the holding in this
case?
Cotnam v. Wisdom
• What is the holding in this case?
• Plaintiff/Doctor is owed
reasonable compensation for
services rendered; remanded for
retrial on issue of proper amount
of damages
• Why no contract?
Jury instruction # 2
• What was it?
Jury instruction # 2
• What was it?
• “Character and importance of
operation and decedent’s ability to
pay are elements to be considered
in determining what is a
reasonable charge . . .”
Jury instruction # 2
• What was wrong with it?
Sceva v. True - guidance
• What categories of contracts are
discussed in the Sceva case?
Sceva v. True - guidance
• What categories of contracts are
discussed in the Sceva case?
“necessaries furnished to [a legally
incompetent person] may be liable in
assumpsit . . .”
 P. 107
Varieties of K’s
• Explicit oral or written K
• “Implied in fact” K
Varieties of K’s
• Explicit oral or written K
• “Implied in fact” K
• “Quasi-contract” or Implied in Law
Contract
Implied in law Ks
• Why a “legal fiction”?
Jury instruction # 2
• What was wrong with it?
• Bottom 108: relevant only if there is a
contract . . .
What is the proper measure of
recovery?
• A “reasonable
compensation for the
services rendered . . .”
Why the emphasis on
Dr/patient cases?
• What is unique?
• Professionals expect compensation
• Compare Mills v. Wyman
Restitution
Rest.
of Restitution § 112
comment a – the case of the
hopeful home improver
st
1
Restatement 3d Restitution –
Tentative Draft 2010
§1 (3) There is no liability in
restitution for an unrequested
benefit voluntarily conferred,
unless the circumstances of
the transaction justify the
claimant's intervention in the
absence of contract.
Indiana Lumbermens Mut. Ins. Co. v.
Reinsurance Results, Inc., 513 F.3d 652
(7th Cir. 2008) (Posner, J.)
If while you are sitting on your porch
sipping Margaritas a trio of itinerant
musicians serenades you with
mandolin, lute, and hautboy, you have
no obligation, in the absence of a
contract, to pay them for their
performance no matter how much you
enjoyed it . . . .
Contract is incomparably superior to
restitution as a means of regulating
most voluntary transfers because it
eliminates, or minimizes, the
fundamental difficulty of valuation….
The consequence for the law of
restitution is that restitution is not
normally available to the claimant who
should have made a contract with the
recipient but failed to do so.
-- Rest. Restitution, TD, § 1, comment f
§ 371. Measure Of Restitution
Interest
• If a sum of money is awarded to protect a party's
restitution interest, it may as justice requires be
measured by either
• (a) the reasonable value to the other party of what he
received in terms of what it would have cost him to
obtain it from a person in the claimant's position, or
• (b) the extent to which the other party's property has
been increased in value or his other interests
advanced.
Restatement (Third) of Restitution
And Unjust Enrichment (Tentative
Draft)
2005
§ 1. Restitution And Unjust Enrichment
A person who is unjustly enriched at the
expense of another is liable in
restitution to the other.
§ 1 Illustration 4. Acting in an
emergency and with no opportunity to
contract, A provides medical services
to B. A does not intend to act
gratuitously and plans to seek
compensation later. The circumstances
of the transaction make it one in which
the law permits A to assert that he did
not intend to make B a gift of services.
R3d Restit. TD § 20. Protection Of Another's
Life Or Health
A person who performs, supplies, or obtains
professional services reasonably
necessary for the protection of another's
life or health has a claim in restitution
against the other if the circumstances
justify the claimant's decision to intervene
without a prior agreement for payment or
reimbursement. Restitution under this
Section is measured by a reasonable
charge for the services provided.
Schott v. Westinghouse
Collana v. Oak Park Homes
What was the K in Collano?
What was the K in Collano?
• Between Callano and Bruce
Pendergast
How did Oak Park Homes enter
the scene?
How did Oak Park Homes enter
the scene?
• Why no contract action
between Callano and Oak Park
Homes?
Callanos
Promise to
install shrubs
$$
Bruce
Pendergast
Why not sue
Pendergast/Grantges?
Callanos
Promise to
install shrubs
$$
Bruce
Pendergast
Callanos
Oakwood
Park
Homes
“Privity of
Contract”
Callanos
Oakwood
Park
Homes
Callanos
No “Privity
of
Contract”
Oakwood
Park
Homes
Callano on “quasi-contracts”
• Clothed with the semblance of contract
for the purpose of the remedy
• “The duty defines the contract”
Compare Paschall’s, note 2, 112
Compare Paschall’s, note 2, 110
• “Exhaustion of remedies” against
contracting party -- ?
•
Mechanics’ liens - 113
Pyeatte v. Pyeatte
• History
• Facts
Why a restitution claim?
• Contract “indefiniteness”
• Still relevant?
What can be claimed?
• Compare Wisner
What can be claimed?
• Amount of claim in Pyeatte?
• Time limits on claim?
•  Cal Fam Code § 2641 (10 years or
more, no separate recovery)
Dementas v. Tallas
• Good case to suggest need for reform?
• Is the result unfair?
Wendy Gordon, On Owning Information:
Intellectual Property and the Restitutionary
Impulse, 78 Virginia Law Review 149-281 (1992)