The Balanced Approach


Be a Bar Exam Warrior

Expectation v. Unjust Enrichment: Do the Math

$50,000.00  vs.  $90,000.00

In a Contracts/Remedies context, the examiners love to give you situations where you have to do some math to figure out how much a Plaintiff will be rewarded under expectation damages (a legal compensatory remedy) vs. the restitution remedy of unjust enrichment.  The math = your application = the A in IRAC. 

It's vital to remember that under unjust enrichment the value of damages is measured by the benefit to the defendant.  Sometimes that benefit has a greater value than the contract price. Sometimes that benefit has a lower value.  A plaintiff will want to choose the remedy that gives them more.  Look to the contract negotiations and/or the fair market value to make a determination.

For example, imagine a contract or an unenforceable (quasi) contract where the defendant got a "really good deal" on that contract price.  Then that defendant unjustifiably breaches. The contract  "50% off deal" brought the price down to $50,000.  Plaintiff finishes 90% of the project before the defendant unjustifiably breaches.  In this situation, legal damages would be in the amount as if the contract was completed - $50,000.  But under unjust enrichment, the value of his services conferred to the defendant would be much more.  Plaintiff could instead be awarded $90,000 because the value of his services was actually $100,000, and plaintiff conferred 90% of that value on to the defendant.  

After that math, that little restitution IRAC becomes a major issue to spot and a big winner for the non-breaching plaintiff!  It's a short IRAC, but a very sweet one for the plaintiff.


Amy Parekh