I am still confused about why Acme Mills may be entitled to an amount greater than the contract price for restitution. My understanding is that we define restitution as a measure designed to "put the defendant in the position he would have been in had there been no contract." If Acme and Johnson had not entered a contract, Johnson would have still had the opportunity to sell his wheat to Liberty Mills at $1.16 per bushel. If we now require him to pay the excess of his profit ($1.16-1.03 per bushel) to Acme, does that not make him worse off than he would have been had there been no contract?

With contract: He gets $1.03 per bushel. By breaching contract: He gets $1.16 per bushel. With no contract: He gets $1.16 per bushel.

Putting the issue of the sacks aside, I don't see how Acme can ask for anything other than the return of the $1.03 per bushel, had that payment already been made. And given that Acme had not made that payment yet, the defendant cannot demand anything under the restitution rule.

I know that Professor Lessig began to answer this question at the end of class, but I was not sure I understood the answer. Can anyone help me?

Emel

-- Anonymous, October 20, 1998

Answers

confusions

Many here, mostly my doing. Don't confuse what a plaintiff says with what "can be justified." The motive and aim of the plaintiff was to get the court to get the profits that the D got by virtue of the D breaching his contract. That gain, he said, should be given to me. The court, however, had a different view. ("No.") That view is the salient one.

-- Anonymous, October 21, 1998