restitution(redirected from restitutive)
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In the context of Criminal Law, state programs under which an offender is required, as a condition of his or her sentence, to repay money or donate services to the victim or society; with respect to maritime law, the restoration of articles lost by jettison, done when the remainder of the cargo has been saved, at the general charge of the owners of the cargo; in the law of torts, or civil wrongs, a measure of damages; in regard to contract law, the restoration of a party injured by a breach of contract to the position that party occupied before she or he entered the contract.
The general term restitution describes the act of restoration. The term is used in different areas of the law but carries the same meaning throughout.
The basic purpose of restitution is to achieve fairness and prevent the Unjust Enrichment of a party. Restitution is used in contractual situations where one party has conferred a benefit on another party but cannot collect payment because the contract is defective or no contract exists. For instance, assume that a person builds a barn on the property of another person. Assume further that the structure is not erected pursuant to a contract or agreement and that the owner of the property on which the barn sits refuses to pay the builder for the barn. Despite the absence of a contract, a court can order the owner to pay the builder the cost of the labor and materials under the doctrine of restitution.
Courts in seventeenth century England first developed the doctrine of restitution as a contractual remedy. The concept migrated to courts in the United States, and it has since expanded beyond its original contractual roots. Courts now apply restitution in the areas of maritime or admiralty law, criminal law, and torts. In admiralty law restitution may be ordered when a shipping crew must throw goods overboard to keep the ship afloat. In such a case the owner of the jettisoned goods may gain some recovery for the goods from the owners of the other cargo under the doctrine of restitution.
In criminal law restitution is a regular feature in the sentences of criminal defendants. Restitution in the criminal arena refers to an affirmative performance by the defendant that benefits either the victim of the crime or the general public. If a victim can be identified, a judge will order the defendant to make restitution to the victim. For example, if a defendant is convicted of stealing a person's stereo, the defendant may be sentenced to reimburse the victim for the value of the stereo, in addition to punishment such as jail time and monetary fines.
Courts try to fashion the restitution of a criminal defendant according to the crime committed. For example, a defendant convicted of solicitation of prostitution may be ordered to perform work for a local shelter for battered women as a form of restitution to the general public.
In tort law restitution applies to the measure of damages required to restore the plaintiff to the position he or she held prior to the commission of the tort. For example, if a person is injured by another person, the injured party may collect medical expenses and lost wages as restitutionary damages. Other civil damages are distinct from restitutionary damages because they are not based on the amount required to restore the injured party to his or her former status. Punitive Damages, for example, are damages assessed against a civil defendant for the purpose of punishing the defendant's conduct, not to provide restitution.
Knapp, Charles L. 1987. Problems in Contract Law: Cases and Materials. Boston: Little, Brown.
Shoben, Elaine W., and William Murray Tabb. 1989. Remedies: Cases and Problems. Westbury, N.Y.: Foundation Press.
n. 1) returning to the proper owner property or the monetary value of loss. Sometimes restitution is made part of a judgment in negligence and/or contracts cases. 2) in criminal cases, one of the penalties imposed is return of stolen goods to the victim or payment to the victim for harm caused. Restitution may be a condition of granting defendant probation or giving him/her a shorter sentence than normal.
restitutionthe branch of the law of obligations that deals with the redressing of unjust enrichment subtracted from the plaintiff In a wider sense it also covers restitution in respect of wrongs done to the plaintiff It can be expressed by saying that a defendant must disgorge an unjust enrichment made at the expense of the plaintiff Restitution for unjust enrichment is now a recognized basis of obligation in English law as a result of the decisions of high authority. There is a search for an ‘unjust factor’. In Scotland, in some cases restitution must be made where there has been a transfer for no legal cause (hence the use of ‘unjustified’ in Scotland and other civilian jurisdictions) and it is inequitable for the defender to retain the enrichment. It has been recognized in Canada and Australia for some time. An analytical vocabulary has grown up in the Anglo-American world that makes it easier to analyse problems and find principled solutions: see NON-MATERIALIZATION, FREE ACCEPTANCE, PASSING ON, CHANGE OF POSITION. The former categorization quasi-contract is now less frequently encountered.
Both the English and Scottish legal systems have well-known heads of liability, the most important of the English heads being the action for MONEY HAD AND RECEIVED and in Scotland RECOMPENSE, the CONDICTIO INDEBITI, the CONDICTIO CAUSA DATA CAUSA NON SECUTA and NEGOTIORUM GESTIO. The Scots law is based upon developments in the civil law, but it has taken its own path in many instances.
Other obligations like relief, salvage and subrogation can be seen to have restitutionary features. The constructive trust is increasingly being seen as a form of remedial obligation that has the effect of making restitution for unjust enrichment. The term restitution is also used narrowly in Scots law to denote the obligation on a defender to return the pursuer's specific property still in the pursuer's ownership.
RESTITUTION, maritime law. The placing back or restoring articles which have been lost by jettison; this is done when the remainder of the cargo has been saved at the general charge of the owners of the cargo; but when the remainder of the goods are afterwards lost, there is not any restitution. Stev. on Av. 1, c. 1, s. 1, art. 1, ii., 8. Vide Recompense.
RESTITUTION, practice. The return of something to the owner of it, or to the
person entitled to it.
2. After property has been taken into execution, and the judgment has been reversed or set aside, the party against whom the execution was sued out shall have restitution, and this is enforced by a writ of restitution. Cro. Jac. 698; 4 Mod. 161. When the thing levied upon under an execution has not been sold, the thing itself shall be restored; when it has been sold, the price for which it is sold is to be restored. Roll. Ab. 778; Bac. Ab. Execution, Q; 1 Al. & S. 425.
3. The phrase restitution of conjugal rights frequently occurs in the ecclesiastical courts. A suit may there be brought for this purpose whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without sufficient reason; by which the party injured may compel the other to return to cohabitation. 1 Bl. Com. 94; 1 Addams, R. 305; 3 Hagg. Eccl. R. 619.