Restitution and Contract: Non-Cumul?
This article explores the extent to which it is or may be possible to have a claim both in contract and in restitution. Restitution will almost never be appropriate before a valid contract has been discharged but after it has been discharged a restitutionary claim may be available as well as a contractual one. A restitutionary claim cannot, however, be used to set aside the contractual allocation of risks. It is argued that while in the past English courts may have been too willing to conclude that restitution would be inconsistent with the allocation of risks, the view of those striving to show the independence of restitution that there will always be a restitutionary claim unless the contract, construed strictly against the party resisting restitution, has excluded it, goes too far in the opposite direction. The terms of the contract and its nature are of vital importance to the existence and extent of any restitutionary claim Apart from the question of express or implied exclusion by a contractual remedial regime which is a complete code, the contract determines both whether contractual rights are "conditional" and defensible or "unconditional", and whether the acts of the person against whom restitution is sought constitute part performance of the contract which will either bar a claim or for which the plaintiff will have to give credit.