In the context of CRIMINAL LAW, state programs under which an offender is required, as a condition of his or her sentence, to repay money or donate services to the victim or society; with respect to maritime law, the restoration of articles lost by jettison, done when the remainder of the cargo has been saved, at the general charge of the owners of the cargo; in the law of TORTS, or civil wrongs, a measure of damages; in regard to contract law, the restoration of a party injured by a breach of contract to the position that party occupied before she or he entered the contract.
The general term restitution describes the act of restoration. The term is used in different areas of the law but carries the same meaning throughout.
The basic purpose of restitution is to achieve fairness and prevent the UNJUST ENRICHMENT of a party. Restitution is used in contractual situations where one party has conferred a benefit on another party but cannot collect payment because the contract is defective or no contract exists. For instance, assume that a person builds a barn on the property of another person. Assume further that the structure is not erected pursuant to a contract or agreement and that the owner of the property on which the barn sits refuses to pay the builder for the barn. Despite the absence of a contract, a court can order the owner to pay the builder the cost of the labor and materials under the doctrine of restitution.
Courts in seventeenth century England first developed the doctrine of restitution as a contractual remedy. The concept migrated to courts in the United States, and it has since expanded beyond its original contractual roots. Courts now apply restitution in the areas of maritime or ADMIRALTY LAW, criminal law, and torts. In admiralty law restitution may be ordered when a shipping crew must throw goods overboard to keep the ship afloat. In such a case the owner of the jettisoned goods may gain some recovery for the goods from the owners of the other cargo under the doctrine of restitution.
In criminal law restitution is a regular feature in the sentences of criminal defendants. Restitution in the criminal arena refers to an affirmative performance by the defendant that
benefits either the victim of the crime or the general public. If a victim can be identified, a judge will order the defendant to make restitution to the victim. For example, if a defendant is convicted of stealing a person's stereo, the defendant may be sentenced to reimburse the victim for the value of the stereo, in addition to punishment such as jail time and monetary fines.
Courts try to fashion the restitution of a criminal defendant according to the crime committed. For example, a defendant convicted of solicitation of prostitution may be ordered to perform work for a local shelter for battered women as a form of restitution to the general public.
In tort law restitution applies to the measure of damages required to restore the plaintiff to the position he or she held prior to the commission of the tort. For example, if a person is injured by another person, the injured party may collect medical expenses and lost wages as restitutionary damages. Other civil damages are distinct from restitutionary damages because they are not based on the amount required to restore the injured party to his or her former status. PUNITIVE DAMAGES, for example, are damages assessed against a civil defendant for the purpose of punishing the defendant's conduct, not to provide restitution.
Knapp, Charles L. 1987. Problems in Contract Law: Cases and Materials. Boston: Little, Brown.
Shoben, Elaine W., and William Murray Tabb. 1989. Remedies: Cases and Problems. Westbury, N.Y.: Foundation Press.