A Relational Critique of the Third Restatement of Restitution § 39

In the Restatement (Third) of Restitution and Unjust Enrichment, breach of contract is regarded as a "wrong," and, in response to the perceived shortcomings of the current law of remedies based on compensatory damages, the proposed Section 39 seeks to provide for disgorgement of profit as an alternative remedy for "opportunistic" breach. In so doing, the Restatement is substantially repeating the argument for the extension of restitutionary remedies for breach of contract which recently has had great success in the Commonwealth. The restitutionary criticism of compensatory damages is, at root, that those damages are unable to prevent important forms of immoral or amoral contracting behaviour. However, this Article argues that, viewed from the perspective of the relational theory of contract, compensatory damages encourage a valuably cooperative attitude towards dealing with problems which arise in the course of contracting, and that Section 39 would undermine that attitude, diminishing the moral quality of contracting.