RESTITUTIO
restitution, n.1. A body of substantive law in which liability is based not on tort or contract
but on the defendant’s unjust enrichment. See UNJUST ENRICHMENT . 2. The set of remedies
associated with that body of law, in which the measure of recovery is usu. based not on the
plaintiff’s loss, but on the defendant’s gain. Cf. COMPENSATION; DAMAGES. 3. Return or
restoration of some specific thing to its rightful owner or status. 4. Compensation for loss; esp.,
full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but
ordered as part of a criminal sentence or as a condition of probation. [Cases: Damages 1;
Implied and Constructive Contracts 4; Infants 224; Sentencing and Punishment 1973,
2100–2217. C.J.S. Criminal Law §§ 19, 1459, 1462, 1465–1466, 1556, 1759–1786; Damages §§
1–2, 4–6; Implied and Constructive Contracts§ 6.] — restitutionary, adj.
“The term ‘restitution’ appears in early decisions, but general recognition probably began
with the publication of the Restatement of Restitution [in 1937]. The term is not wholly apt since
it suggests restoration to the successful party of some benefit obtained from him. Usually this will
be the case where relief is given, but by no means always. There are cases in which the successful
party obtains restitution of something he did not have before, for example a benefit received by
the defendant from a third person which justly should go to the plaintiff.” 1 George E. Palmer, The
Law of Restitution§ 1.1, at 4 (1978).
“ ‘Restitution’ is an ambiguous term, sometimes referring to the disgorging of something
which has been taken and at times referring to compensation for injury done. Often, the result
under either meaning of the term would be the same. If the plaintiff has been defrauded into
paying $1,000 to the defendant, his loss and the defendant’s gain coincide. Where they do not
coincide, as where the plaintiff is out of pocket more than the defendant has gained and the
defendant’s conduct is tortious, the plaintiff will recover his loss in a quasi-contractual or equitable
action for restitution. Unjust impoverishment as well as unjust enrichment is a ground for
restitution. If the defendant is guilty of a non-tortious misrepresentation, the measure of recovery
is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks,
and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of
either party need to be weighed.” John D. Calamari & Joseph M. Perillo, The Law of Contracts §
9-23, at 376 (3d ed. 1987). [Blacks Law 8th]