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Hanoch Dagan has a new piece on mistake.

Abstract:
"This Article presents a normative framework for analyzing how the law of restitution responds to mistakes in the unilateral conferral of benefits, such as mistaken payments, mistaken provision of services, and mistaken improvements of property. The Article explores the two main perspectives typically applied to mistakes analysis: First, from the perspective of mistakes as involuntariness, mistakes may invite the law's corrective measures to reinstate the commands of a mistaken party's will, thus expanding her freedom of action and securing the integrity of her self. The law should respond favorably and accord restitution if the recipient has not been harmed by the mistake, or if she should fairly bear such harm. Second, from the perspective of mistakes as accidents with casualties, mistakes should be analyzed in terms of minimizing social costs by inducing the appropriate avoidance behavior of both parties, properly allocating between them the costs of mistakes, and minimizing the system's administrative costs. The law should grant restitution if it is supported by such an efficiency analysis. Using these autonomy- and efficiency-based analyses of mistakes, this Article concludes with an evaluation of the prevailing rules of the law of mistakes as restated by a recent Discussion Draft of the Restatement of the Law of Restitution and Unjust Enrichment. "

It is at ssrn.com,
more specifically at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=255344

Steve Hedley

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