Restitution in the breach of contract context

1
Restitution in the breach of contract context
Was there a substantial breach?
Yes
No
Did P confer a benefit on D?
Yes
No
Is it unjust to let D retain the benefit?
Yes
No
P gets the reasonable value of the benefit
conferred
No restitution recovery
2
Substantial Breach Criteria

• Was the breach "willful" (i.e, particularly
  reprehensible)? Finding that the breach was
  "willful" counts in favor of regarding it as
  substantial.
• (2) To what extent did the breacher perform his
  or her contractual duties? The more work left to
  be done, the more that counts in favor of
  finding a substantial breach.
• (3) To what extent would awarding expectation
  damages adequately compensate the non-breacher?
  The more adequate the expectation award, the more
  that counts against finding a substantial breach
  (equivalently, in favor of finding substantial
  performance).
• (4) Would it inadequately compensate THE BREACHER
  to force the breacher to sue in restitution? If
  so, that weighs AGAINST finding a substantial
  breach.

3
Measuring the benefit conferred
Market value Determined by how much people
generally are willing to pay. Value to an
individual Determined (at least in some cases)
by how much that person is willing to pay--this
may be more or less than the market value Actual
cost of providing the good or service Example
book dealer obtains a rare book for 50. The
dealer sells the book for its market value of
100. The cost of providing the good is 50.
Average cost to the reasonable seller The
average cost of the rare book to a bookdealer
might be more or less than the actual cost to
some particular dealer. The average cost might
be 75. A particular dealer might pay more or
less. Expected versus actual benefitP We can
use the above measures to measure either the
actual or expected benefit.