“In this Article I first argue that Section 62 of the Restatement (Third) of Restitution & Unjust Enrichment sits in tension with the principles expounded in the rest of the work. I then try to show that this tension is mostly unnecessary because the majority of the cases covered by Section 62 could be either (1) explained by the rules of other sections or (2) dismissed as quaint products of a bygone era dominated by a robust conception of equity. I conclude that the Section should not have been included in the Restatement. However, in fairness, I must acknowledge that a reporter, striving to create a comprehensive Restatement, faces constant pressure to accommodate more cases, even though he may disagree with the reasoning within the cases. Hence, overinclusion is to be expected. Still, the inclusion of Section 62 remains a mistake, albeit not a foolish one …”
Adam Rigoni, “A Sin of Admission: Why Section 62 Should Have Been Omitted from the Restatement (Third) of Restitution & Unjust Enrichment“, 68 WASH. & LEE L. REV. 1203 (2011).
First posted 2012-01-21 10:11:42
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