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This article is written by Ratnika Pathak of 3rd semester of Atal Bihari Vajpayee School of Legal Studies, CSJM, Kanpur, an intern under Legal Vidhiya


The doctrine of restitution mentions in section 65 of the Indian contract law, 1872 which brings a legal principle that aims to remedy unjust enrichment resulting from a breach of contract. It operates on the premise of restoring parties to their pre – contractual positions by undoing any gains obtained through the breach. Unlike traditional damages, restitution is concerned with preventing on party from unfairly benefiting at the expenses of the other. this doctrine underscores the equitable nature of contract law, seeking to achieve fairness and balance in contractual relationships.

The doctrine of restution in contract law on restoring parties to their original positions before a contract. it emphasizes equitable remedies, aiming to prevent unjust enrichment. rather than focusing solely on damages, restitution seeks to reverse any unjust gains resulting from a breach, promoting fairness and corrective justice in contractual relationships.

In this article the doctrine of restitution showed various types of essentials and the exceptions related to the restitution.


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The term doctrine stands for the legal document made between the parties to a contract on the other hand the restitution means that the offending party needs to pay for various costs that victim has experienced as a result of the actions of the offender.

The doctrine of restitution in contract law revolves around restoring a party to the position they were in before entering into a contract. it is applicable when a contract is void or unenforceable, aiming to prevent, unjust enrichment. restitution focuses on the return of the benefits received or compensation for services rendered, ensuring fairness in contractual relationships. the section 65 of the Indian contract act also states that the principle that if a contract is void or unenforceable , and one party has conferred  benefit on the other , the party conferring the benefit may be entitled to restitution . this aims to prevent unjust enrichment by ensuring that a party is not allowed to retain a benefit without compensating the other party for the value conferred. restution aims to restore the parties to their pre – contractual positions by requiring the recipient of the benefit to make restution for any gains obtained.[1]


Restitution, in a broader sense, refers to the act of restoring or making amends for something that has been lost, damaged, or taken away. in legal contexts, restitution specially involves the compensation or restoration of a person to the position they were in before suffering a loss or an injury. it’s a remedy that aims to rectify unjust enrichment or prevent one party from unfairly benefiting at the expense of another. restitution can occur in various legal scenarios, such as contracts, torts, or cases of unjust enrichment, and it may involve the return of property, monetary compensation, or other appropriate remedies.


In the context of contract law, the doctrine of restitution involves the restoration of parties to their pre – contractual positions positions in cases where a contract is deemed void or unenforceable. here are key aspects:

  1. Void contracts: if a contract is void ab initio (from the beginning), the doctrine of restitution comes into play. parties are typically required to restore any benefits or consideration they received under the contract.
  2. Unjust enrichment: restitution applies when one party has been unjustly enriched at the expense of the other due to a failure or defect in the contract. the aim is to prevent someone from retaining benefits received under circumstances that are deemed unjust.
  3. Quasi – contract: even in the absence of a valid contract, a court may imply a quasi – contractual relationship to prevent unjust enrichment. this is known as restitution for the reasonable values for services or goods provided.
  4. Compensation: restitution may involve the payment of money or the return of property to restore the parties to their pre – contractual positions. the goal is to achieve fairness and prevent one party one party from gaining an underserved advantage.
  5. No performance, no payment: if one party fails to perform its obligations under a contract, the other party may seek restitution for any payments made or benefits conferred without receiving the agreed-upon performance.

In summary, the doctrine of restitution in contract law focuses on restoring parties to their original positions when a contract is void, unenforceable, or when unjust enrichment has occurred. it operates one party from retaining benefits acquired under circumstances that would be considered inequitable or unjust.[2]


The doctrine of restitution in both India and England revolves around the concept of restoring a person to the position they were in before suffering a loss. In India, restitution is a principle of justice and equity, applied when one party has been unjustly enriched at the expense of another. it is not a codified law but is based on judicial decisions.

In England, the doctrine is rooted in both common law and equity. it allows the court to order the return of property or compensation to correct unjust enrichment. English law recognizes various forms of restitution, including restitution for wrongs and restitution for breach of contract. Both legal systems use the doctrine of restitution to prevent unjust gain and promote fairness, although the specific applications and nuances may differ based on jurisdiction and legal traditions.

Privity of restitution refers to the idea that parties directly involved in a contract have rights and obligations related to restitutionary claims. unlike privity of contract, which focuses on the relationship between the contracting parties, privity of restitution deals with situations where third party seeks restitution for benefits conferred.

In contract law, restitution involves the return or compensation for benefit one party has provided to another. privity of restitution limits the ability of third parties to claim restitutionary rights unless they have a direct relationship with the contracting parties.

For example, if A denotes with B to paint B, s house, and B fails to pay, A has a restutionary claim against B for the value of the painting services. however, if C, a neighbour, pays A on B, s behalf, C generally cannot claim restitution from B because C lacks privity of restitution.

Exceptions to privity of restitution may arise in cases of agency, assignment, or certain circumstances where the law recognizes the right of a third party to assert restutionary claim. overall privity of restitution serves as a principle to maintain the direct connection between parties in contractual relationships when it comes to restutionary claims.


  1. Consideration played an important role before entering into a contract.
  2. There was some consideration involved in the said contract.
  3. Both parties were competent to contract.
  4. Thereafter one party failed to perform his party of the contract or the contract became void due to any unforeseen condition.
  5. Now the party which has paid any consideration as the advance is entitled to recover the same from the party and the other party is not entitled to receive an unfair advantage over it.


Privity of restitution refers to the legal concept that limits the parties who can enforce a restutionary claim. restitution is a legal remedy aimed at restoring the benefited party to the position they were in before the unjust enrichment occurred. here are the essentials of privity of restitution.

  1. Unjust enrichment:
  2. Privity of restitution arises in cases of unjust enrichment where one party has received a benefit at the expense of another without a valid legal reason.
  3. Lack of contractual relationships:
  4. Unlike contractual claims, restitution does not depend on a contractual relationship between parties .it focuses on the unjust benefit gained by one party at the expense of another.
  5. Benefit conferred:
  6. To establish restitution, it must be shown that measurable benefit was conferred upon the recipient. This benefit could be in the form of services rendered, property transferred, or some other tangible advantage.
  7. Absence of legal obligation;
  8. The party conferring the benefit must have done so without a legal obligation to do so. if there is a pre-existing legal duty or contractual obligation, the claim might be based on those grounds rather than restitution.
  9. Inability to enforce a contract:
  10. Privity of restitution often comes into play when there is no direct contractual relationship between the parties, or when enforcing a contract is impractical or impossible.
  11. Quantum meruit and quantum valebant:
  12. These are legal doctrines associated with restitution. the term quantum meruit means as much as he deserves, and quantum valebant means as much as they were worth. these doctrines help determine the reasonable value of the benefit conferred.
  13. Equitable remedy:
  14. restitution is considered an equitable remedy, and courts may use their discretion in determining whether unjust enrichment has occurred and what remedy is appropriate.

In summary, privity of restitution is rooted in the principle of preventing unjust enrichment when there is no direct contractual relationship between the parties. It allows a party to seek restitution for the benefit conferred upon another without a legal obligation to do so.


The doctrine of restitution generally aims to restore a party to the position they were in before certain event occurred. here are some key exceptions:

  1. Change of position:

if a party has changed their position in good faith, believing they were entitled to the benefit received, restitution may be limited.

  • Bonafide fide purchase for value;

If a third acquires property in good faith and for value, without notice of the circumstances requiring restitution, they may be protected.

  • Unclear hands:

If a party seeking restitution is found to have acted with unclear hands or engaged in wrongdoing themselves, the court may limit or deny restitution.

  • Impossibility or impractically;

If restitution is practically impossible or highly impractical, the court may find it unreasonable to order restitution.

  • Statutory limitations:

Some jurisdictions have statuses of limitations that restrict the time within which claim for restitution can be brought.

  • Equitable defences:

Equitable defences such as laches or estopple may be applied to limit restitution or clear restitution in certain circumstances.

  • Illegality:

If the contract is illegal or against public policy, restitution may be limited to prevent unjust enrichment of the party in breach.

  • Contributory fault:

If the innocent party contributed to the breach or the failure of the contract, the court might adjust restitution accordingly.

These exceptions are context – dependent and can vary bases on jurisdiction and specific case details.[3]

Defences against restitution claims

  1. Lack of unjust enrichment:
  2. Argue that the defendant did not receive any benefit or enrichment unfairly.
  3. Demonstrates that any benefits received were earned or had a valid legal basis.
  4. Change of positions:
  5. Assert the defense of change of position where the defendant argues they have changed their position in reliance on the transaction, making restitution inequitable.
  6. Statute of limitations :
  7. Check if the claim is barred by the statue of limitations, arguing that too much time has passed since the alleged unjust enrichment.
  8. Unclear hands:
  9. Argue that the claimant is not entitled to restitution because they were involved in wrongdoing or unethical behaviour related to the transaction.
  10. Contractual obligations:
  11. If there was a contract involve d, assert that the obligations under the contract have been fulfilled, and restitution is not warranted.
  12. Mistake of fact or law;
  13. Claim that any enrichment was due to a mistake of fact or law, making it unjust to require restitution.
  14. Incapacity
  15. If one party was not mentally competent or lacked the legal capacity to enter into the transaction, it may be a defense against the restitution.
  16. Unenforceable transactions:
  17. If the transactions were illegal or unenforceable, argue that restitution should not be granted based on an unlawful act.
  18. Tracing:
  19. Challenge the claimant’s ability to trace specific benefits alleged unjust enrichment, making it difficult to establish a clear link.


  • Mohori Bibi v. dharmodas Ghosh

Subject – what is the effect of contracts entered into by the minors?

Facts of the case;

On 20th July 1985, dharmodas Ghosh borrowed 20 thousand rupees with interest at 12%per annum from Brahmo Dutt and mortgaged some of his houses. on the day the mortgage was executed Kedar Nath an attorney for Brahmo Dutt, got dharmodas Ghosh to sign a declaration that this age according to his mother’s statement is 21 years, one month and three days.

On 15th July, 1895, before the execution of mortgage deed, the mother of dharmodas Ghosh, who was his certified guardian appointed by Calcutta high court, gave a notice to kedar Nath that babu dharmodas Ghosh is still a minor under the age of 21 years and any one lending money to him will do so at his own risk.

On 10 th of September, 1895, dharmodas Ghosh his mother and guardian as next friend filed a suit in the lower court alleging that at the time of the mortgage dharmodas Ghosh was minor, therefore, the mortgage is not binding on the plaintiff and the contract is void.

The defendant Brahmo Dutt in his defences pleaded that:

  • The plaintiff was not a minor at the date of mortgage.
  • The defendant or attorney did not receive any notice about the minority of the plaintiff.

Decision of trial court:

The plaintiff suit in the trial decreed against this decision defendant filed an appeal to Calcutta high court which was dismissed. defendant filed second appeal to privy council but died before the judgement, hence the appeal was prosecuted by mohori Bibi and another as the executors of his estate.


The doctrine of restitution is a legal principle that aims to restore a party to the position they were in before a particular event occurred. in legal contexts, the doctrine of restitution is often applied on cases where one party has been unjustly enriched at the expense of another due the mistake, fraud, fairness, or other factors that make enrichment, inequitable. courts may order restitution as a remedy to rectify the unjust enrichment and ensure fairness between the parties involved. its important to note that the specific of how the doctrine of restitution is applied can vary depending on jurisdiction and the nature of the legal dispute. this doctrine is a legal concept designed to rectify unjust enrichment by restoring parties to their pre-enrichment state through various remedies, emphasizing fairness in the doctrine of restitution under the contract law. 



[2] http://blog.pleaders.in

[3] http://lawcorner.in

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