Vanderbilt Law Review


William Wicker

First Page



Civil remedies may be grouped under three classifications: torts, contracts, and restitution. The plaintiff's objective in a tort action is a recovery for his loss which resulted from the defendant's wrongful act, the measure of recovery being the amount of that loss expressed in dollars. The plaintiff's objective in a contract action is a recovery for a breach of the defendant's promise, the measure of recovery being the net addition to the plaintiff's estate which would have resulted had defendant performed his promise. Restitution is a giving back of what has been taken away unjustly. The plaintiff's objective in a suit for restitution is a recovery of the specific benefit to defendant, or its value. The measure of the recovery in a suit for restitution is the addition to the defendant's holdings resulting from his wrongful act.To recover in restitution, the plaintiff must be out-of-pocket and the defendant must be in-pocket, and further, it must be inequitable for the defendant to keep the benefit. A right to restitution may be enforced either by an action at law or by a suit in chancery. Substitutional redress may be obtained by way of a recovery of a judgment for a stated sum in an action at law,or specific reparation may be attained by way of an equitable decree that the defendant is a constructive trustee for plaintiff of the specific property of which the plaintiff has been deprived. There are only five Tennessee restitution cases reported in the Southwestern Reporter for the year covered by this survey. The remedies sought in those cases were rescission, constructive trust and resulting trust. The cases will be analysed under those three headings.