UNJUST ENRICHMENT AND QUASICONTRACTS
Christopher T. Wonnell
Professor of Law, University of San Diego School of Law
© Copyright 1999 Christopher T. Wonnell
This chapter presents an economic analysis of some of the most typical cases
involving the law of restitution. It questions the economic utility of a
generalized theory of unjust enrichment, but defends the economic wisdom of
three of the most common categories of relief that have gone under that
umbrella term (rescue situations, transfers that were not fully voluntary or
informed, and benefit-based remedies for wrongs committed).
JEL classification: K19
Keywords: Duty to Rescue, Unjust Enrichment, Restitution, Hypothetical
1. Scope of the Chapter
This chapter presents an economic analysis of some of the most typical cases
involving the law of restitution, which is generally defined as the class of all
claims grounded in the unjust enrichment of the defendant (Goff and Jones,
1993, p. 3). Actions that seek damages based upon restitutionary principles at
law are frequently characterized as quasi-contractual in nature. However,
restitutionary remedies are also available in equity, as with the constructive
trust that a court can impose on property to avoid the defendant’s unjust
enrichment. This article will question the economic utility of a generalized
theory of unjust enrichment, but defends the economic wisdom of three of the
most common categories of relief that have gone under that umbrella term.
The first of these sources of restitutionary or quasi-contractual relief
involves plaintiffs who did something that purposely but unofficiously
benefitted defendants, such as a physician who provided emergency medical
services to an unconscious patient (Cotnam v. Wisdom, 104 S.W. 164 (Ark.
1907); In re Crisan Estate, 107 N.W.2d 907 (Mich. 1961)). An economic
rationale could be that the law is seeking to provide an incentive for providers
to render services that the recipients value more than their cost but that cannot
be negotiated contractually by virtue of high transaction costs.
If the rescue is indeed efficient, one question is whether the potential
rescuer should be under an affirmative duty to provide the service (Epstein,
1973, p. 190). Thus, this article will explore both restitutionary ‘carrots’ for
rescuers and potential tort or criminal ‘sticks’ that might be imposed on
The rescue situation, however, is by no means the only scenario in which
restitutionary relief is available. This article will discuss two other broad
patterns of cases. One pattern concerns transfers that were not fully voluntary
or informed, as with payments of money by mistake or pursuant to a contract
that has become impossible to perform. In such situations, plaintiff’s can often
recover restitutionary recoveries from defendants, although defendants may be
able to interpose defenses such as changed circumstances in reliance on the
payments made. The economic theory here is that full divestiture of the
plaintiff’s property as a consequence of mistake would encourage excessive care
in the avoidance of mistakes or in the contractual transfer of possession. If the
social cost of a mistaken or contractual transfer is small, it would not be wise
to allow the private cost of the transfer to be large.
A third common restitutionary pattern is the benefit-based remedies for
wrongs committed. For example, if the defendant converts property belonging
to the plaintiff and uses the property to make some profit, the plaintiff may be
able to ‘waive the tort and sue in assumpsit’ to recover the gain the defendant
has made. The economic theory here is essentially one of deterring a defendant
from bypassing market transactions where transaction costs are low enough to
make such transactions feasible.
2. The Anomaly of Benefit-Based Liability
The essence of restitutionary claims is often said to be the focus on the
defendant's gain as opposed to the plaintiff’s loss (Dobbs, 1993, Sec. 4.1). From
an economic perspective, this is immediately anomalous. Economic analysis
generally sees legal intervention as a response to conduct that imposes harm,
seeking to sanction or ‘price’ that behavior so as to reduce its incidence to more
optimal levels. Barring some argument based upon envy or spite, the presence
of a gain as such is not a reason for the law to become concerned (Wonnell,
1996, pp. 177-190). To the contrary, the defendant’s gain is normally a factor
that cuts against the wisdom of trying to impose sanctions on the defendant for
harms that the defendant may have caused.
For example, one imposes sanctions on a contract breacher because of the
harm that breach inflicts on the promisee, but one might worry about
excessively large sanctions that would deter even efficient breaches where the
defendant’s gain from breach exceeded any harm caused (Posner, 1986, p.
882). Similarly, one imposes tort liability on an ultrahazardous activity because
of its predictable harms or costs, but one is not led to embrace criminal
sanctions, injunctions, or benefit-based liability against the blaster precisely
because of the gains that the defendants (and their contractual partners) are
making from their blasting activity. And, of course, under Learned Hand’s
famous test of negligence in the Carroll Towing case, an action can be
considered non-negligent and therefore escape liability precisely when the
benefits from not taking care were larger than the expected harm (United States
v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). Finally, the paradigm
case of damnum absque injuria is the losses caused by fair competition, losses
which are not compensable precisely because the gains made by defendants and
their contracting partners from the ability to compete freely are so large.
These facts strongly suggest that ‘unjust enrichment’ is never going to have
the unity as a field that might be possessed by other great categories of the law
such as tort and contract (Wonnell, 1996). The conclusory label ‘unjust’ hides
the nature of the harm that warrants legal intervention. And there must be some
special, rather than general reason, to regard ‘enrichment’ as an integral part
of the wrong rather than as a factor in complete or partial mitigation of the
This article suggests that ‘unjust enrichment’ is really a shorthand for three
essentially different concepts. The first is the theory of rewarding those who
intentionally confer positive externalities on others with the fruits that could
have been earned by contract had transaction costs been lower. The second is
the idea of incomplete divestiture of property. The third is the notion of
deterring the conscious bypassing of available market options.
3. Hypothetical Contracts for Rescuers; Duty to Rescue
One situation in which the law has awarded ‘restitutionary’ remedies involves
the plaintiff who rescued the defendant’s person or property and seeks
compensation for costs incurred in the rescue. Physicians are frequently
awarded their reasonable fee when they render emergency medical services to
unconscious patients. Other situational rescuers are sometimes given
compensation for their out-of-pocket costs, although many providers of services
are denied compensation for having acting ‘officiously’ (Dawson, 1961). If tort
law penalizes the imposition of negative externalities, this branch of restitution
law rewards the creation of positive externalities (Epstein, 1994, p. 1377).
Dramatic rescues from death or serious bodily injury are not the only
example of this class of remedies. In continental countries, a party can recover
in ‘negotiorum gestio’ for costs incurred in repairing storm damage to the
house of a neighbor who was out of the country. Co-owners of property are
often allowed to make necessary repairs or maintenance expenses on the
common property and to bring actions against their co-owners for
compensation. A party who creates a common fund, such as a class-action
plaintiff or her attorney, can often recover in restitution from others benefited
by the plaintiff’s action. Although less dramatic than the rescue cases, the
essential principles of these cases are the same. Transaction costs of a voluntary
transaction are high, whether because of unavailability of a party or bilateral
monopoly conditions, and the Kaldor-Hicks efficiency of the service is
sufficiently obvious that the risk of judicial error appears tolerably low
(Bouckaert and De Geest, 1995, p. 485). It is certainly true that not all
providers of valued services are entitled to compensation from the enriched
recipients. Courts tend to deny recovery to those who ‘intermeddle’ or provide
services officiously. When transaction costs are low enough to enable a
voluntary transaction, there is no efficiency advantage to allowing parties to
provide services without consent and then to demand compensation after the
It is somewhat doubtful that the principle involved in the rescue cases is one
of benefit-based liability at all (Levmore, 1994, p. 1427). The physician who
performs emergency medical services is not really asking for a benefit-based
remedy. If the service was ineffective, the plaintiff can recover although the
defendant derived no benefit. And if the service was effective, the benefit
derived is the value of the defendant’s extended life, which is not awarded. Nor
should it be, from the standpoint of efficiency, for such a ‘rescue’ which
provided no benefit to the defendant would encourage the defendant, who
controls the regular use of herself and her property, to exercise excessive care
to avoid the need to be ‘rescued’ (Wittman, 1985, p. 182). The plaintiff’s
regular fee is normally a good measure of the defendant’s benefit because it is
a reflection of alternatives available to the defendant; if many people are
willing to perform a service for a particular fee, any one service provider cannot
benefit the defendant by more than the fee she could have paid instead.
However, in the rescue context, there may have been no other service providers,
so the plaintiff’s regular fee is no longer an indication of the extent of the
defendant’s benefit (Wonnell, 1996, pp. 169-171).
Instead, the principle of the rescue cases is essentially one of hypothetical
contract, imposing on the defendant the contract which would have been
consented to had the transaction costs been lower (Long, 1984, pp. 415-416).
It is properly denied when the plaintiff had no contractual intent, as when the
services were offered with the intention of extending them as a gift. The label
‘quasi-contract’ has a bad reputation with restitution scholars, because the
notion of ‘contract’ is so misleading in describing why the defendant is liable
in the case of mistaken transfers or in the case of willful conversions (Goff and
Jones, 1993, p. 6). In the rescue setting, however, the contract analogy seems
apt, as long as one remembers that the consent is hypothetical and indicative
only of how the parties would have contracted had the opportunity been
Rescuers are not always treated well by the courts. Courts may dismiss
rescuers as intermeddlers too frequently, leading to an inefficiently low number
of rescue attempts (Wade, 1966, p. 1212). One situation in which rescuers fare
somewhat better is in admiralty, where successful rescuers are often awarded
a considerable fee for their efforts. The need for professional rescuers to engage
in investments in rescue-related equipment may partially explain the sympathy
accorded to such rescuers in admiralty. It has been argued that the structure of
compensation for rescuers in admiralty closely approximates the terms of a
transaction that the parties would have made with the rescuer had a transaction
been possible (Landes and Posner, 1978, pp. 103-104).
An interesting question is whether rescues, if they are clearly efficient,
should be required rather than left to the law of quasi-contract. An award that
was substantial enough to clearly exceed the plaintiff’s costs should be
sufficient to inspire rescue. If restitutionary awards are generous, a duty to
rescue could be superfluous, but by the same token it would appear to be a
harmless supplemental incentive.
The most serious problem with penalties (especially when pursued to the
exclusion of liberal restitutionary awards) is their indirect effects on incentives.
A person who realizes that her talents and properties can be conscripted to help
others will not have as much incentive to develop those talents and properties
in the first place or have them in a place where they could be useful to others,
although the empirical significance of this problem will vary with the
circumstances (Levmore, 1986, pp. 889-892). This problem might be quite
unimportant where the cost of the rescue was trivial, as with the paradigm case
of the person who refused to throw a rope to a drowning swimmer.
The incentive problem with mandatory rescue as opposed to restitutionary
regimes is essentially a problem of governmental knowledge. To impose an
efficient duty to help, one would need to know about the previous choices
available to potential rescuers and what effect the prospect of liability might
have on those choices. To create a hypothetical contract, one can instead ignore
past choices, as a mutually beneficial transaction should not deter others
similarly situated from making the choices which would place them in a
position to be of service to others.
This is not to say that a duty to rescue would always be inefficient. Where
one party is both a better avoider of the loss and a better insurer against
uncertain outcomes, it may be an express or implied part of a contract that one
will provide rescue services when needed by the other. This may explain why
the law sometimes imposes a duty to rescue between parties in a ‘special
relationship’ with each other such as common carriers or innkeepers and their
guests (Prosser and Keeton, 1984, Sec. 56, pp. 376-377). Another possible case
for an efficient rescue duty would be a setting in which one was equally likely
to be a rescuer or a rescuee. In that case, a party may actually be encouraged to
be in a position where she can be of service, as an unintended byproduct of
wanting to be somewhere that others would have a duty to rescue if one got into
trouble (Hasen, 1995, p. 141).
Another potential problem with a duty to rescue is that the would-be rescuee
loses some of her incentive not to be in a position that would require rescue
(Wittman, 1981, p. 89). In principle, this should be accounted for in saying that
the duty is truly an efficient one, for if the rescuee is a cheaper cost-avoider, the
would-be rescuer’s duty would not be efficient (Calabresi and Hirschoff, 1972,
pp. 1060-1061). However, this would once again require considerable
knowledge on the part of the state as to the steps that could have been taken by
would-be rescuers and rescuees.
If knowledge of decisions available in prior periods is unavailable, the safer
course may be to try to construct mutually beneficial bargains by generous
rewards extended to rescuers, at least where there is no reason to fear that a
plaintiff may have induced the demand for her own rescue services (Levmore,
1986, p. 886). It is true that a restitutionary award, by making rescues more
likely, will increase the incentive of potential rescuees to act in ways that will
require their rescue, but because rescuees will be forced to pay for the service
rendered to them, the effect will be considerably smaller than that generated by
a duty to rescue.
Still another potential problem with the duty to rescue concerns
administrative costs. Parallels can be drawn to the great costs of trying to
enforce against consensual or victimless crimes, where lack of evidence is a
serious problem unless one resorts to very aggressive law enforcement
techniques. The person who was not rescued may be deceased and unavailable
as a witness, while other witnesses to the nonrescue may be equally culpable as
nonrescuers and thus unwilling to bring forward their information (Rubin,
1986, p. 274). And if multiple nonrescuers were involved, there will be
difficulties in assessing relative responsibility. There may be some incentive
gain from the purely symbolic effect of creating a largely unenforceable legal
duty to rescue, although this would have to be traded off against any losses that
might occur in the feelings of altruism or heroism that might result from the
perception that one was performing only a legal duty (Rubin, 1986, p. 275).
The economic argument for a duty to rescue - somewhat uncertain, as noted
above, at least for rescues of nontrivial cost - should be distinguished from the
broader social or utilitarian argument for redistribution from those with surplus
resources to those with greater need for the resources. The economic argument
asserts that each rescue is a Kaldor-Hicks efficient transaction, and can add that
rescue situations are sufficiently unpredictable that a general duty of rescue
might well be in everyone’s ex ante interest to accept. The redistributive
argument would assert that people have a duty to do their part for others in dire
need even if the economic value of their resources (as contrasted with their
utility) is not higher in the rescuee’s hands, and despite the fact that the rescuer
may have no reasonable expectation of receiving reciprocal benefits. In normal
circumstances, a welfare state would be the sensible mechanism for
coordinating such a duty, but in rare emergency cases the person who should
act might be sufficiently individuated that a private law rescue duty could
supplement the system of taxation and public protection. At least some
commentators appear to make both the economic and the redistributive
arguments for a duty to rescue (Weinrib, 1980, pp. 272, 292). The redistributive
argument of course suffers from the more general moral hazard problems of
welfare states in altering behavior by shielding people from the consequences
of their choices.
4. Incomplete Divestiture
Suppose that the plaintiff pays money to the defendant by mistake, perhaps
having miscounted the money or misidentified the defendant’s account number.
What is the economic rationale for requiring the defendant to return the
The essential idea is that the plaintiff is in a position to make decisions over her
own property, and the law should create an incentive to optimize these
decisions. There may be a modest social cost created if the plaintiff is careless
in directing her money, as the mistake must then be identified and corrected at
some administrative effort. Ideally, the property holder should be liable for
these costs in order to ensure that she takes proper care to avoid mistakes.
However, it would not be efficient to punish mistakes with full divestiture of the
plaintiff’s rights to the value of the money. Such a rule would impose a private
cost on the plaintiff much larger than the social cost of correcting a mistake.
The plaintiff would be induced to exercise too much care to avoid her mistake
(Huber, 1988, p. 99). Moreover, the defendant would have a perverse incentive
not to correct, or even potentially to cause, the plaintiff’s mistake.
In the case of money, the social cost of the mistake is usually small,
although it may be large if the defendant took actions in detrimental reliance
on what reasonably appeared to be new wealth. In other situations, the social
cost of mistake may be quite substantial. A common pattern involves a plaintiff
who constructs a building by mistake on the defendant’s land (Madrid v.
Spears, 250 F.2d 51, 54 (10th Cir. 1957); Rzeppa v. Seymour, 203 N.W. 62, 63
(Mich. 1925)). As the defendant did not ask for the building, it may be worth
considerably less than the value of the plaintiff’s labor and materials invested
in the project (Dickinson, 1985, pp. 62-63).
Older cases tended to deny recovery to the plaintiff builder on the theory
that the defendant should not be made worse off by being required to pay for an
improvement she did not want (Producers Lumber & Supply Co. v. Olney Bldg.
Co., 333 S.W.2d 619 (Tex. Civ. App. 1960)). This approach, however, does
create an incentive for the plaintiff to exercise excessive care in avoiding
mistakes, and for the defendant to exercise insufficient care to avoid such
mistakes by the plaintiff.
Many recent cases have granted a restitutionary recovery for the plaintiff
who constructs a building on the defendant’s land by mistake. The problem
with this approach is that the social cost of the mistake is difficult to measure.
The illiquidity of the newfound wealth imposes different costs on different types
of parties, depending upon their overall preferences and financial situation
(Kull, 1997). Perhaps the best approach would be for the courts to make
generous assumptions about the amount of harm that will be caused by the
illiquidity, and to award the plaintiff an amount that one can assert with
considerable confidence will not make the defendant worse off from the overall
The essence of the plaintiff’s claim is not that the defendant has been
enriched. If for some reason the plaintiff’s building looked particularly good on
the defendant’s land, there is no reason to require the defendant to disgorge the
gains received in excess of the costs the plaintiff has incurred (Madrid v.
Spears, 250 F.2d 51, 54 (10th Cir. 1957); Rzeppa v. Seymour, 203 N.W. 62, 63
(Mich. 1925)). Rather, the plaintiff’s essential claim is harm caused by the
incomplete divestiture of property.
It would clearly be undesirable to allow the plaintiff to retain formal title to
the building while the defendant retained formal title to the underlying land.
This would create serious problems of bilateral monopoly and accompanying
high transaction costs of breaking the compulsory (Wonnell, 1996, p. 197).
Property, however, is a bundle of severable sticks, and the fact that necessity
compels the divestiture of the plaintiff’s physical rights to the property does not
mean that the plaintiff must also lose her rights to the value of that property.
Incomplete divestiture is the counterpart to the more familiar idea of
incomplete privilege (Bohlen, 1925). A defendant who is caught in a storm
and needs to use the plaintiff’s docking facilities is not confronted with legal
rules designed to prevent use of the plaintiff’s property, such as criminal
sanctions, injunctions, or benefit-based liability. However, the defendant
remains liable for the costs imposed, as an incentive for the defendant to take
the potential for such emergencies into account in evaluating how to make use
of her own property. (Vincent v. Lake Erie Transportation Co., 124 N.W. 221,
222 (Minn. 1910)). Necessity compels the yielding of exclusive physical rights
to the property (and the right to charge any price made possible by free
contract) but it does not compel the yielding of the plaintiff’s rights to the value
of the property. ‘Restitution’ in these cases is essentially the same principle, but
where the plaintiff rather than the defendant is the active party, and accordingly
where the law must remain alert to the possible harms caused by the activity in
Contracts provide the backdrop for many restitutionary remedies. In some
circumstances, especially important in losing contracts, the courts may allow
a restitutionary recovery as an alternative to standard expectation principles of
damages. This is quite a problematic idea, as it allows the plaintiff to escape the
allocation of a risk that the contract may have efficiently placed (Kull, 1994,
pp. 1465-1470). It also gives the plaintiff a perverse incentive to induce the
defendant to breach a contract, or to jump on breaches of uncertain materiality
as excuses for rescission. However, in some situations it seems likely that the
parties would have wanted a restitutionary recovery, especially where the
defendant completely failed to perform and the plaintiff’s restitutionary interest
is much easier to calculate than her expectation (Kull, 1994).
Restitution is also granted in many cases to the breaching party to a contract
(Restatement of Restitution, 1937, Sec. 108(b)). As a general idea, this is
simply a way of ensuring that the non-breaching party receives her expectation
interest, but only her expectation interest, upon breach. It is therefore justified
by the general economic argument that favors expectation damages and
disfavors punitive damages, involving the principle of efficient breach and the
desire to avoid high-transaction-cost bargaining over the surpluses from breach
between bilateral monopolists (Posner, 1986, pp. 106-107). On the other hand,
in some circumstances it may be difficult to calculate the expectation interest,
with the result that a restitutionary recovery for the breaching party threatens
to undercompensate the nonbreacher and thereby underdeter breach.
Parties sometimes provide for forfeitures of down payments without regard
to actual damages as an implicit recognition of this phenomenon of
restitutionary awards leading to undercompensation of the nonbreaching party.
The general argument that contracts are presumed efficient (at least between
informed parties) would argue for the enforcement of such bargained for
Finally, restitution is often granted in the case of broken contracts, such as
those held to be unenforceable under the Statute of Frauds (Boone v. Coe, 153
Ky. 233, 154 S.W. 900 (1913)), or those that become impossible to perform
through some intervening condition or statute. Again, we face a case of
incomplete divestiture of property. The parties parted with their goods or
services on assumptions that have proved to be invalid. If the court were to
simply leave the parties where it finds them, the parties would have incentives
to strategically and uneconomically delay the transfer of physical possession of
resources involved in the contracting process (Bouckaert and De Geest, 1995,
To induce parties to use optimal timing in contracts, transfers should be
undone if no social harm has been caused (by, for example, affixing resources
to projects that no longer have value). If harm has been done, the problem is
more complex, and might be addressed by asking which of the parties is more
efficiently situated to have prevented or insured against that harm (Posner and
Rosenfield, 1977, p. 83).
5. Disgorgement for Bypassing Viable Market Options
Another use of the restitutionary idea is as an alternative remedy for wrongs.
For example, a person who intentionally converts property belonging to another
is liable in tort for the harm caused, but may also be liable in restitution for the
benefit received from her own use of the ill-gotten property. It is said that the
plaintiff can ‘waive the tort and sue in assumpsit’ to recover gains larger than
the plaintiff’s loss (Palmer, 1978, Sec. 2.10). Restitution can be awarded
against those who procured the plaintiff’s property ‘through imposition
(express or implied), or extortion; or oppression; or an undue advantage taken
of the plaintiff’s situation, contrary to laws made for the protection of persons
under those circumstances’ (Moses v. Macferlan, 2 Burr. 1005, 97 Eng. Rep.
676 (1760)). Willful takers of intellectual property belonging to the plaintiff
have often found themselves affected by this principle (Gordon, 1992).
Is this remedy an exemplar of the broader principle that a person should not
‘profit from a wrong’? (Restatement of Restitution, 1937, Sec. 3). From an
economic perspective, this depends greatly on how ‘wrong’ is defined. If wrong
is confined to well-defined, easily avoidable conduct that unambiguously
imposes more harm than benefit, it would certainly be true that efficiency
would require that the defendant not be permitted to profit from the wrong. The
law needs to deter such conduct, and disgorgement is the minimum sanction
sufficient in principle to effectuate such deterrence. Of course, in this case,
economic analysis would see no reason for trying to put the defendant on her
own indifference curve between right and wrong conduct (Wittman, 1985, p.
182). If the behavior is clearly defined and unambiguously inefficient, punitive
damages or criminal sanctions may be in order, or certainly liability for harm
caused (by definition larger than the benefit received). Thus the disgorgement
principle, while valid, would be properly submerged in the law beneath more
On the other hand, if wrong is defined as conduct that the law ought to
sanction, it is no longer true that we would want a rule that a person should not
‘profit from a wrong’. In economic theory, sanctions are imposed because the
behavior in question might be inefficient, or because the precise behavior
involved is inefficient but is difficult to distinguish before the defendant’s
action is taken from other behavior, the inefficiency of which is less clear. In
such cases the liability needs to be measured by harm caused rather than benefit
derived. Harm-based liability gives the defendant the incentive to undertake the
activity if and only if her benefits truly exceed the harm caused. Benefit-based
liability would make the defendant indifferent to the costs imposed on the
plaintiff (as these did not affect remedies) and to the benefits she herself
derived (as these would be taken away in any event) (Wittman, 1985, p. 173).
One should not expect, therefore, any robust general principle of law that
involves disgorgement of gains received. Gains in themselves are not
objectionable; they serve to mitigate wrongdoing. Gains should be disgorged
in cases where the actual remedies are likely to be considerably more severe, so
that the disgorgement idea is unnoticed. When other penalties are
inappropriate, this is usually because of factors that make the disgorgement
idea inappropriate as well.
There is one situation, however, where disgorgement is clearly appropriate.
This is the conscious bypassing of readily available market alternatives. This
behavior is clearly inefficient, because even if the defendant had more valuable
uses for the property in question than the plaintiff, she could, by definition,
have obtained those efficiencies by consensual means. Moreover, many takings
are clearly inefficient, and the litigation costs of distinguishing those that are
from those that are not are likely to dwarf the transaction costs of a voluntary
move of the property.
An interesting question is whether this principle should result in a
defendant’s duty to disgorge gains made by a breach of contract (Farnsworth,
1985, p. 1369). The theory would be that a promise constitutes property of the
plaintiff, and that the defendant has converted that property by retaining the
benefits of refusing to perform. On the other hand, the contract breach setting
is one of bilateral monopoly, and the parties might have considerable difficulty
agreeing on a voluntary distribution of the gains from breach. Where that
situation obtains, a disgorgement rule might threaten to undermine the gains
from breach entirely, or result in their dissipation through haggling over their
distribution (Posner, 1986, p. 118). The traditional rule disfavoring
disgorgement remedies for breach of contract may well be efficient for that
reason, although it should certainly yield in the face of evidence that the
contracting parties intended a disgorgement remedy to apply.