Business and Commercial Litigation
Commercial Remedies
The measure is the value of the benefit the defendant received rather than the plaintiff's loss. It is available on rescission, on total breach, and where no enforceable contract exists.
Measurement may use cost or market value of the benefit.
Alternative Names:
Restitution Interest|Disgorgement of Benefit
Why it Matters?
Restitution can exceed the contract price where the plaintiff conferred a benefit worth more than the agreed compensation, which makes it the preferred measure for a party that underpriced work the defendant then repudiated. Courts divide on whether the contract price caps restitution recovery. Electing restitution generally requires rescinding rather than affirming the contract, which forecloses expectation damages on the same claim.
Frequently Confused with
Related terms
Frequently asked questions
Can restitution exceed the contract price?
What does electing restitution forfeit?
