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. 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. The historical core of restitution for breach involves restitution purely in the sense of restoration. Modern restitution for breach takes the latter tack, explaining the nonenforcement remedies for breach of contract as if they were instances of enrichment-based restitution. One of the most important reasons to reevaluate restitution for breach is to redirect attention to the important remedy of rescission that lies concealed within it.
