Contracts Discharged through Breach: Restitution for Services Rendered by the Innocent Party
AbstractThe author examines the autonomous claim in unjust enrichment available to a party who has elected to treat a contract as discharged because of the defendant's fundamental breach. In this context, he concentrates upon the claim in respect of services rendered and addresses the primary questions that arise in the law of restitution: What factor renders the defendant's enrichment unjust? Has the defendant in fact been enriched? How should the defendant's enrichment be valued? The author suggests answers to these basic questions, but he also tries to show that there is little need to give a plaintiff, faced with a repudiatory breach, an alternative claim in restitution. The plaintiff should be restricted to a claim for damages for breach of contract. The plaintiff has chosen to make the contract on the terms agreed and there is nothing unfair in limiting the remedies to that bargain.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.