I just have a quick question about something we discussed in class today. In the Acme case, when looking at damages from the restitution perspective, I think that Lessig said we should look at the $1.17 price of wheat (the price that the defendant was able to charge after breaching the orignial contract).

Why would we look at that price? I don't understand how the value of the wheat in the second contract the Defendant entered into has anything to do with the contract he breached. It seems that if the idea of restitution is to put the defendant into the position he would be in had there been no contract, that we would only be concerned with what (if anything) the plaintiff had paid defendant in their original contract.

If i simply misunderstood what was being said about this in class, let me know...I'd appreciate a clarification.

-- Anonymous, October 20, 1998

Answers

If I understand the terms correctly, I beleive that the aim of restitution is to take the profits the defendant gained as a result of the breach and return them to the plaintiff. I think that had the defendant in this case simply breached the contract, without selling the wheat to a third party, the plaintiff would have been happy with the expectancy determination. But because he saw the defendant profiting from the breach, he asked the court to award damages from the restitution formulation. But because expectancy is the preferred formulation, and expectancy could easily be calculated in this case, the plaintiff was not entitled to the defendent's profit.

-- Anonymous, October 20, 1998