Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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there is no consensus among commentators as to which torts should trigger<br />
restitution; incremental judicial development would therefore seem especially<br />
appropriate.<br />
1.42 We agree. Accordingly, we recommend that:<br />
(4) no attempt should be made to state comprehensively in legislation<br />
the situations in which torts should trigger restitution; subject to<br />
recommendation (7), the development of the law of restitution for<br />
torts should be left to common law development.<br />
(b) Restitution of enrichments gained by an equitable wrong<br />
1.43 We have seen that the focus of controversy is somewhat different in respect of<br />
restitution for equitable wrongs than for torts - that is, the controversy is not about<br />
whether restitution is available in respect of enrichments gained by an equitable<br />
wrong (which is well-accepted), but about the appropriate remedy for effecting<br />
restitution (personal or proprietary?). But we again believe, in line with the views<br />
of consultees, 258<br />
that this area is best left to the courts to develop, <strong>and</strong> that, in<br />
general, statutory intervention would be inappropriate.<br />
1.44 Accordingly, we recommend that:<br />
(5) no attempt should be made to state comprehensively in legislation<br />
the situations in which equitable wrongs should trigger restitution;<br />
subject to recommendation (7), the development of the law of<br />
restitution for equitable wrongs should be left to ‘common law’<br />
development.<br />
(c) Restitution of enrichments gained by a breach of contract<br />
1.45 Several suggestions have been made to the effect that restitutionary damages ought<br />
to be more widely available for breach of contract. 259<br />
For example, Birks has<br />
argued that restitutionary damages are appropriate where the breach of contract is<br />
cynical; 260<br />
whilst Maddaugh <strong>and</strong> McCamus have argued that restitution may be<br />
appropriate where compensatory damages are inadequate. 261<br />
1.46 In the Consultation Paper our provisional view was that, in general, restitutionary<br />
damages should not be awarded for breach of contract, but that they should be,<br />
<strong>and</strong> arguably already are, available where a contract is specifically enforceable 262<br />
<strong>and</strong> where the contract is made between fiduciaries. We isolated four arguments<br />
258 See para 3.41 above.<br />
259 For a general survey, see A Burrows, The <strong>Law</strong> of Restitution (1993) pp 401-403.<br />
260 “<strong>Restitutionary</strong> Damages for Breach of Contract” [1987] LMCLQ 421.<br />
261 The <strong>Law</strong> of Restitution (1990) pp 432-438.<br />
262 See also J Beatson, The Use <strong>and</strong> Abuse of Unjust Enrichment (1991) pp 15-17; S M<br />
Waddams, “Restitution as Part of Contract <strong>Law</strong>”, in A Burrows (ed), Essays on the <strong>Law</strong> of<br />
Restitution (1991) pp 208-212.<br />
41