ABSTRACT

Secondly, where a restitutionary claim is made against a contractual background, there may be a need to tailor relief so as to prevent it subverting the terms of the contract itself. For instance, if I perform services at your request without a contract, I should obviously be able to claim their reasonable value.29 Subject to arguments based on ‘subjective devaluation’ and such-like, there is no other way to quantify the recovery. But, if the services amounted to partial performance of a contract between us, then arguably I should be limited to a pro rata proportion of the agreed price for the whole, on the basis that I should not be able to do better by performing in part than I would have done had I performed in full. This is discussed more fully below.30