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Thank you Charles. You represent my views correctly, though they go somewhat beyond your last sentence. At the risk of repetition let me add that in my view the law protects various interests against certain events. When these events lead to the enrichment of another party we speak of a cause of action in restitution. When the event is one in which damage to the interest is caused, the cause of action is in torts or breach of contract. Consider the following example: D contracts to transfer certain property to P. He fails to do so in the following circumstances:

1) D sells it to T.

2) D negligently destroys it.

3) The property is confiscated by the government which compensates D.

4) The contract is frustrated in circumstances in which D is not entitled to any compensation.

The protected interest, in all these situations, is P's performance interest (created by the contract). Situation (4) describes an event against which the law may not offer any protection. In situation (3) there is no wrong (no breach of contract), but it is an event which in my view calls for the law of UE to intervene by allowing P to recover the compensation paid to D (against payment of the price). In situation (2) the sole remedy is a claim for damages for the breach of contract. Situation (1) describes an event for which P may sue either for damages (breach of contract) or restitution (recovery of the price paid by T to D). In none of these circumstances is the claim in restitution "parasitic". If the availability of restitution would have been dependant on the wrong as some may argue with regard to situation (1) (namely breach by D for which damages are available) then no restitution could be had in Situation (3) in which at least I assume that restitution should be allowed, although there is no breach (it is actually a case of frustration for which compensation are payable).

These examples can easily be converted into torts-restitution situations by assuming that P was the owner of the property and D a bailee. In situation (3) it is possible to assume that the property was lost without D being liable in torts or breach of contract (no wrong at all) and that payment for the loss was made by an insurer (cf. Hepburn v. Tomlinson).

Dan

----- Original Message -----
From: "Charles Mitchell"
Sent: Monday, May 08, 2006 10:58 AM
Subject: [RDG] Fwd: [RDG] Waiver of Tort

Danny Friedmann and John McCamus must speak for themselves, of course, but I had understood the basic Friedmann argument to be that the law does/should protect some types of interest directly (rather than 'parasitically') by making restitutionary awards against defendants who infringe those interests, not by allowing a claim in UE, and not by spring-boarding off proof of a wrong sounding in compensatory damages either. Instead, the argument goes that the law should/does protect some interests by allowing some wrong-based restitutionary claims, without putting the claimant to proof of the fact that he could have sued for compensation instead if the wrong in question had caused him a loss. I hope Danny will forgive me for misrepresenting him if I don't have this right. If I do, then I would only comment that the argument presupposes that proof of loss is not a necessary part of our idea of 'wrong'.