LAWS3079/JURD7379 Restitution

Lecturer: Simone Degeling

What is Restitution about?
Restitution looks at a claim in unjust enrichment. That’s the source of rights and obligations which is distinct from contract and tort, and it sits alongside contract and tort and is the third leg of that stool, which is an independent source of rights of obligations. It is really about the law of giving things back; and so when somebody is unjustly enriched at the expense of another, it’s the source of law which makes the recipient give back that value or give back that thing.

Why does this subject interest you?
Restitution also allow you to see the normative choices that private law makes – as law students, we’re very sensitised to seeing those moral choices or those value laden choices in the public law space and we’re not always sensitised to seeing how private law also operates normatively, and it’s very important that we do. Restitution is a subject that really highlight this.

Do you have any advice to give students who are interested in taking these courses?
Students should study this subject along with Remedies, because then you have both parts of the apple; you see the whole universe. One is not a substitute for the other. Remedies looks at the remedial angle; it looks at the remedial plane and knits together multiple sources of rights and obligations as a whole; whereas Restitution interrogates a new source of rights and obligations that sits alongside contract and tort, which focuses not on the loss to the plaintiff, but the gain to the defendant.

How will this course be relevant in the future?
Restitution is highly relevant because it contains essential, foundational knowledge, irrespective of whether you’re going to work in private commercial practice, government, or anywhere really. If you’re doing a law degree and you’re not intending to practise as a lawyer, I would still say it’s relevant because it focuses on a conceptual approach, encourages linked up thinking and exposes the value basis of legal doctrine. It’s both philosophical and doctrinal in that sense. Restitution is increasingly important in practice and is a subject that a lot of existing practitioners wouldn’t have had the opportunity to study at law school. As a newly qualified lawyer who is given research tasks, you’re going to be the one who’s expected to have the foundational knowledge.

Student: Daniela Lai

Please give us a brief overview of the main topics studied in Restitution
The course is about unjust enrichment and learning about how to establish the elements of unjust enrichment as an equitable cause of action. It is primarily a common law course, comprised of a lot of cases and no legislation. The unjust factors for unjust enrichment are extensively looked at – these include mistake, undue influence, necessity and failure of basis. The defences of estoppel and change of position to a claim of unjust enrichment are also looked at. While learning about elements of unjust enrichment, you learn about policy-motivated factors that drive changes in the law. Restitution is a subject which only takes up half a semester, so these topics are looked at quite thoroughly.

What did you like about the course?
Restitution was one of my favourite elective subjects because the content was so interesting. You are basically learning about who should keep the money or benefit and why: the person who unwittingly received it, aka was unjustly enriched (the defendant), or the person who gave it away at their expense (the plaintiff)? If you liked studying contracts, torts or equity, this is definitely the course for you. Unjust enrichment interacts interestingly with contract and torts and builds on private law principles. The course was very well structured because Simone, our lecturer, went through the elements of unjust enrichment one by one in a really clear and comprehensible way. The focus on elements of unjust enrichment and policy factors was also well balanced so that we could choose to write either essay questions or problem questions. The readings were very reasonable, being about 30 pages per class. The content was quite challenging because it involved reading lots of (often commercial litigation) cases but Simone explained the decisions really well. We also did a lot of revision and practice problem questions, which prepared us well for the final take-home exam.

What could be improved?
The textbook wasn’t very clear or well-structured. I would definitely recommend doing some extra reading to help your understanding of the content because the course is definitely dependent on how well you understand the principles of unjust enrichment.