Equitable Protection of Restitution: The Accounting for Profits

This lesson will cover the remedy known as the Accounting for Profits. Frequently, this remedy is not covered extensively in the classroom setting, probably because the accounting for profits often accompanies other remedies which receive greater attention. Consequently, this lesson is designed to provide basic coverage of this remedial option. Another lesson, "Equitable Protection of Restitution: The Constructive Trust and Equitable Lien" is recommended. Taken together, students will learn when each form of relief is available, the advantages and disadvantages that each form offers and, when the choice is available, the strategic implications of choosing one form over another.

Learning Outcomes

On completion of the lesson, the student will be able to:

1. Contrast the underlying principles of restitution with unjust enrichment.
2. List the four equitable tools that courts use to protect the right to restitution.
3. List the elements of restitution.
4. Explain situations where damages are superior to restitution.
5. Explain situations where restitution can be a preferable alternative to damages.
6. Discuss accounting for profits where the defendant is involved in an ongoing business practice which has somehow made use of the plaintiff's property to turn a profit.
7. Analyze the apportionment defense that allows the defendant to establish that some portion, if not all, of the profits was attributable to factors other than the wrongful conduct.