Restitution is surprisingly straightforward. When one person has benefited at the expense of another they are required to make that person whole by repayment. When restitution is awarded, it is because the court is committed to preventing the defendant from unjust enrichment. That is to say; the law does not want someone to be rewarded by being dishonest. Even in its simplicity, restitution, when awarded, can be pretty flexible and extremely powerful.

When Does Restitution Apply?

Typically, restitution can be awarded in many areas of law and can be a remedy for so many situations, most commonly, breach of contract. When a contract is formed, one party promises the other something in exchange for a benefit.

If the first party benefits from that promise but the other party receives nothing in exchange, then there is a breach, and the first party has most likely been unjustly enriched. Restitution could be a remedy for that.

In either criminal or civil law cases, a person can be awarded restitution for physical injuries caused to them, or for financial loss, when they are able to show the court that the damage was directly due to the actions of the defendant.

It is important to remember that restitution is only available when the plaintiff is rightfully entitled to recovery. Without the plaintiff’s actual recovery, the defendant would otherwise wrongfully be enriched.

However, restitution will not be given in situations where a person is benefiting by coincidence. For example, let’s say Maria adds a driveway to her home from a public road. By adding this driveway, John’s home becomes more accessible, and his property value increases.

Maria cannot require John to pay restitution based on his enrichment. His enrichment is purely coincidental and, thus, not unjust. Similarly, if enrichment is gained by another based on terms that were agreed upon in a contract, then restitution is not an option.

How is Restitution Measured?

Generally, restitution measures focus on how the defendant was benefited, what they gained, instead of what the plaintiff lost. This is different from compensation. Compensation, or compensatory damages, puts a spotlight on what the plaintiff financially loses, among other things. Restitution can be determined by:

  • The value of the benefit to the defendant
  • Market Value of the benefit
  • The expense to the plaintiff in presenting the benefit; or
  • An innocent holding of benefits – usually, we see this when mistake is used as a defense to unjust
  • enrichment. In any case, repayment is still expected.

Ultimately, it is the court’s discretion as to how much to award a victim. Though the award can be flexible and other factors, besides loss and gain, are taken into consideration when determining what should be granted. Such as:

  • The seriousness of the offense
  • Whether the defendant has the ability to pay restitution now or later
    • or
  • The financial hardship placed on the victim, the victim’s family, the government, or any others who might have been injured during the commission of the crime.

When Can Restitution be Awarded?

As stated above, restitution is a very common remedy for breach of contract actions. It can also be awarded in such civil law cases as assault and battery, negligence, medical malpractice, or personal injury. Consider this: if Miller’s conduct resulted in Maggie’s physical injury, and Maggie had to pay out of pocket expenses, Maggie could be entitled to restitution.

It is essential to mention that the victim is not the only one who might recover restitution awards. A third party may also recover, for example, when Maggie was injured, and her brother pays her medical expenses and helps to nurse her back to health. In that case, Maggie’s brother would be entitled restitution.

Similarly, some criminal cases have a high likelihood of restitution payments. Victims of robbery or burglary will most likely be entitled to repayment at the value of the stolen goods. Like civil cases, third parties may also be entitled, such as in cases of homicide, the victim’s death could cause the court to award restitution to their family.

Are There Any Limits on Restitution Awards?

Restitution is most often determined by what a victim, or victim’s family, can accurately prove. If there is no hard evidence of how the defendant benefited, a judge will not award restitution; or a judge might only award what can be proven.

It is worth noting that there are sometimes choices in how a judge will remedy a case. The court might allow for a victim to choose between damages or restitution. In those limited cases, you can have one but not both.

For example, suppose Alexis stole Rachel’s cell phone valued at $100, but Alexis is able to sell the phone for $120. Rachel only lost $100; this is calculated as damages, and Rachel could be compensated for those damages if she chooses. However, Alexis gained $120, so Rachel’s restitution award would be $120. In this case, Rachel most likely would want restitution over damages.

Do I Need a Lawyer to Recover Restitution?

If you feel you are entitled to restitution, then you should consult a local contract attorney to pursue a claim. The lawyer can help you understand your situation and what steps you should take to ensure that your restitution is maximized.