Vanderbilt Law Review


John W. Wade

First Page



"A person who has been unjustly enriched at the expense of an-other is required to make restitution to the other." This is the first section of the Restatement of Restitution.' It indicates the principle underlying a field of the law coordinate with tort and contract.About a dozen cases during the survey period may be classified as raising a problem within this general subject. They do not cover the whole range of the field and have here been classified on a pragmatic rather than an analytical basis.

Services are normally rendered under a contract which governs the nature of the services and the compensation to be given. This contract may be expressed, or it may be implied from the conduct of the parties, in which case some of the details of the contract may not have been spelled out. The services may also have been bestowed on a party gratuitously, with no intent to charge for them. But cases arise where there was no binding contract between the parties and the services should not be treated as a gift. In such circumstances the recipient may be held under a duty to make restitution. Four cases present the question of whether such a duty was raised. In Cotton v. Robert's Estate, a nephew resided with his family on his aunt's farm, on a crop-sharing basis. During her lifetime, the nephew and his family rendered various personal services (e.g., driving an automobile, running errands, milking cows, tending sheep), and on her death, when he received less in her will than he anticipated he filed a claim against her estate. The court of appeals affirmed a dismissal of the claim. The court found no indication that the nephew had ever intended to charge for the services or that the aunt had expected to be charged for them, and it adverted to the well established "presumption" that "services are rendered gratuitously, from motives of affection and duty," when they are performed "by a member of a family on behalf of another member of the same family."' It was the conclusion of the court that claimant had rendered the services in the hope that his aunt would provide for him in her will, and it followed the uniform rule that one who bestows benefits under such an expectation cannot sue for the value of the benefit when he is disappointed.