Quantum Meruit and the Restatement (Third) of Restitution and Unjust Enrichment

Abstract

Thirty years ago, Professor Graham Douthwaite said that restitution can "arise in a bedazzling variety of situations" and that practitioners usually are not aware of "the restitutionary implications or potential" of their clients' problems. He said that the lack of understanding can be attributed confusion in its terminology and application. The confusion has continued and can also be attributed to the age of the Restatement of Restitution, which was published in 1937. The field should be made more accessible since the American Law Institute is drafting a new Restatement of Restitution and Unjust Enrichment, the Restatement (Third). The new Restatement is bringing clarity and precision to the field of restitution and unjust enrichment. This paper evolved from a brief talk given at the Remedies Workshop of the American Association of Law Schools Annual Meeting in January, 2007. I focus on the clarity that the Third Restatement is bringing to the confusing area known as quantum meruit. This paper will describe some of the confusion that existed, and continues to exist, in quantum meruit litigation. It will then discuss how the Third Restatement's approach should eliminate much of the confusion.

Keywords: restitution; Restatement of the Law of Restitution; Restatement (Third) of the Law of Restitution and Unjust Enrichment: quantum meruit; contract implied in fact; contract implied in law; quasi contract