Love, Money, and Justice: Restitution Between Cohabitants

The principle of unjust enrichment is susceptible to varying interpretations, which reflect importantly different conceptions of how courts should decide cases and develop law. The consequences of different possible interpretations of the unjust enrichment principle are nicely illustrated by a group of cases involving restitution claims between former cohabitants. Claims of this kind are endorsed by the new Restatement (Third) of Restitution and Unjust Enrichment (now in preparation). In recognizing these claims, the Restatement adopts an "equitable" interpretation of unjust enrichment for this category of cases, one that licenses courts to disregard rules and engage in particularistic decision-making. This is surprising in light of the generally rule-oriented approach to restitution endorsed in the initial sections of the Restatement. It also carries with it a number of dangers, which are evident in the context of cohabitant claims.