ABSTRACT
The modern American account of restitution as a remedy for breach of contract involves propositions about the law of contracts and the law of restitution that cannot be squared with the first principles of either basis of liability. According to standard doctrine, the plaintiff confronted with a material breach of contract has a choice of monetary recoveries: either damages or restitution. This chapter examines the doctrinal components of restitution for breach, namely quasi-contract and rescission, in an attempt to discover how this anomalous remedy came to be formulated. It reviews the potentially efficient and inefficient effects that may be expected from the availability of rescission as a remedy for breach of contract. The anomalous results produced by restitution for breach in the losing contract cases have long been evident to writers on contract, and the question whether such results could be adequately explained in terms of enrichment-based restitution has been appropriately controversial.
