Restitution in the breach of contract context

Was there a substantial breach?

Yes

Did P confer a benefit on D?

Is it unjust to let D retain the benefit?

Yes

Yes

P gets the reasonable value of the benefit conferred

No

No

No

No restitution recovery

(1) Was the breach "willful" (i.e, particularly reprehensible)? Finding that the breach was "willful" counts in favor of regarding it as substantial.

(2) To what extent did the breacher perform his or her contractual duties? The more work left to be done, the more that counts in favor of finding a substantial breach.

(3) To what extent would awarding expectation damages adequately compensate the non-breacher? The more adequate the expectation award, the more that counts against finding a substantial breach (equivalently, in favor of finding substantial performance).

(4) Would it inadequately compensate THE BREACHER to force the breacher to sue in restitution? If so, that weighs AGAINST finding a substantial breach.

Substantial Breach Criteria

Market value: Determined by how much people generally are willing to pay.

Value to an individual: Determined (at least in some cases) by how much that person is willing to pay--this may be more or less than the market value

Actual cost of providing the good or service: Example: book dealer obtains a rare book for $50. The dealer sells the book for its market value of $100. The cost of providing the good is $50.

Average cost to the reasonable seller: The average cost of the rare book to a bookdealer might be more or less than the actual cost to some particular dealer. The average cost might be $75. A particular dealer might pay more or less.

Expected versus actual benefit:P We can use the above measures to measure either the actual or expected benefit.

Measuring the benefit conferred