Contracts Discharged through Breach: Restitution for Services Rendered by the Innocent Party


  • Nicholas Rafferty



The 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.