The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for “gratuitous” contributions. This Article reviews societal and legal changes for women since 1937 and notes that, in adding Section 28, the Restatement (Third) followed the methodology of the Restatement (First). The Article reviews the principles of restitution and demonstrates how Section 28 follows them. Section 28 is a welcome addition to the law of restitution, but the author suggests that some of the recoveries described in the illustrations are inadequate. For example, since homemaking services do not have a market value, attempting to put a monetary value on them tends to undervalue them. Limiting recovery to the value of services also ignores the concept of tracing the value of one’s contribution to an asset and recovering the enhanced value of the asset. The name in which the assets are titled should not negate the value of the contributions of the partner without nominal ownership. On the other hand, some illustrations to Section 28 describe adequate remedies, including sharing assets. The author notes the complexity inherent in measuring value in nonmarket, nonmarriage situations, but recommends that the illustrations with the more generous recoveries are appropriate for avoiding the unjust enrichment of one partner.
Candace Saari Kovacic-Fleischer, ‘Cohabitation and the Restatement (Third) of Restitution & Unjust Enrichment‘, 68 WASH. & LEE L. REV. 1407 (2011).