Restitution – Availabilty as an Alternative Remedy Where Plaintiff Has Fully Performed a Contract to Provide Goods or Services

It is hornbook law that restitution is sometimes available as an alternative remedy to a party who has suffered a breach of contract after having conferred a benefit on the defaulting party. It is equally clear, however, that in many cases where a benefit has been conferred, the plaintiff may not elect to sue for the value of his performance but is left to his action for damages on the contract. The cases which are concerned with one or the other of the above rules constitute a large portion of the area of the law called Restitution, and no attempt will be made here to review all of the situations in which restitution may be available as an alternative remedy for breach of contract. On the contrary, the purpose of this comment will be to consider the availability of the remedy in a single class of cases and to discuss some of the factors which may have caused the courts to grant or deny the remedy in those cases. The rather small group of cases with which this comment will be concerned are those in which the plaintiff has fully performed, prior to a breach by the defendant, a contract to deliver goods or render services. For convenience, and also because of differing results in the courts, the cases in which the defendant’s obligation was to pay money will be discussed separately from those in which his obligation was to do something else.