P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 encroachments: between private and public 357 the promisee is required to submit evidence regarding another’s affairs. Furthermore, restitutionary damages require that difficult judgments be made regarding causation as well as attribution of specific profits (and, presumably, also costs) to one specific transaction out of all the undertak- ings of the promisor. 22 Contractual rights that rely on information that can be verified only at a prohibitively high cost are inefficient. They entail high litigation costs that are burdensome ex post and, even more signif- icantly, create an ex ante uncertainty that commercial parties dislike. 23 An instrumental conception of contract that understands the contractual relationship in the classical, adversarial model of self-interested exchange would yield to this preference for maximising the material surplus of the contract. Thus, as argued above, it would resist any attempt to apply a profits remedy to breaches of contract. 24 22 E. Allan Farnsworth, ‘Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract’, (1985) 94 Yale LJ 1339, 1350; Sidney W. DeLong, ‘The Efficiency of a Disgorgement as a Remedy for the Breach of Contract’, (1989) 22 Indiana LR 737, 772–3; J. Standen, ‘The Fallacy of Full Compensation’, (1995) 73 Washington University Law Quarterly 145, 171; Law Commission, Aggravated, Exemplary and Restitutionary Damages, 170; Waddams, ‘Profits’, 120. 23 Alan Schwartz, ‘Relational Contracts in the Courts: An Analysis of Incomplete Agreements and Judicial Strategies’, (1992) 21 Journal of Legal Studies 271, 279–80; Hugh Collins, The Law of Contract (2nd edn, 1993), 367. 24 The conventional approach to the impact of proof difficulties in the context discussed here leads to the opposite conclusion – i.e. to preferring the Israeli rule. That approach perceives the profits from breach as a substitute for the losses for which traditional contract remedies fail to compensate due to proof difficulties. See, e.g., Lord Goff of Chieveley and Gareth Jones, The Law of Restitution (5th edn, 1998), 518. This claim is correct, in so far as it warns against contingencies of undercompensation and also insists that there are cases (for example, where both parties operate in similar markets and with comparable skills) in which the profits that the promisor obtained from her breach can help in assessing the promisee’s lost profits. In such instances, award of profits is an appropriate remedy for the difficulty of undercompensation. Indeed, as noted above, common-law jurisprudence has expressed no hesitancy in granting such an award, without subscribing to the Israeli revolutionary rule. Such a recovery, however, should not be available in any case where the promisor’s profits are not a good – or even reasonable – proxy of the promisee’s loss, and thus not a suitable solution for undercompensation. In such cases (such as where the promisor sells in a different market or where by the time the promisee covers in the market, the market price equals the contract price) liquidated damages are more appropriate than restitutionary damages. Only liquidated damages can credibly solve in these circumstances the difficulties to the promisee of proving the promisor’s profits, and thus the problem of potential undercompensation to the promisee: liquidated damages would allow a promisee to assess (ex ante) the circumstances in which she may be undercompensated due to loss that can be verified ex post only at a prohibitively high cost. See Alan Schwartz, ‘The Myth that Promisees Prefer Supracompensatory Damages: An Analysis of Contracting for Damage Measures’, (1990) 100 Yale LJ 369. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 358 hanoch dagan This, however, is not the only possible conception of contract. A counter- vision of modern contract law perceives the contractual relationship (even in commercial settings) not only as a locus of competition or an instru- ment for the allocation of risks and the production of wealth, but also as a zone of mutual co-operation and confidence, dependence and vul- nerability. This conception of the contractual relationship requires the parties to protect one another and care for each other. To be sure, the contractual parties are not required to prioritise the interests of the other side. But the pursuit of their self-interest must be constrained; they must respect the legitimate interests of their fellow contractors; their obliga- tions to their contractual partners may deviate from those to which they explicitly committed themselves. 25 This counter-vision of the contractual relationship rejects both the tra- ditional rule limiting the promisee to the fair market value measure of recovery, and the revolutionary Israeli rule that allows a promisee to re- cover her promisor’s net profits from the breach. The traditional rule must be rejected because it ignores the injunction to share both unexpected difficulties and unexpected benefits as they arise over the course of the contractual relationship. When the opportunity to sell at the better price materialises, the proper thing for the promisor to do, under this concep- tion of contract, is to contact the promisee, make sure profits expected from breach are greater than the promisee’s expected loss, and – if indeed it turns out that the alternative transaction is more efficient – share these profits with the promisee. The traditional rule is inappropriate because it implicitly sanctions the promisor’s unilateral pursuit of her own interests, irrespective of the existing relationship she has already established with her contractual partner. It thus undermines the conception of contract as an area of interpersonal trust, solidarity and sharing. 26 However, the co-operative conception of contract also entails rejecting a rule that entitles the promisee, as a matter of course, to the net prof- its the promisor derived from the breach. Such a rule would absolutely 25 John Adams and Roger Brownsword, Key Issues in Contract (1995), 200–2, 215, 217, 220, 223–5, 301–3; Roberto M. Unger, ‘The Critical Legal Studies Movement’, (1983) 96 Harvard LR 561, 632, 639, 641–4; Hugh Collins, ‘The Transformation Thesis and the Ascription of Contractual Liability’, in: T. Wilhelmsson (ed.), Perspectives of Critical Contract Law (1993), 293, 306–7; J. M. Fineman, ‘Critical Approaches to Contract Law’, (1983) 30 University of California at Los Angeles LR 829, 837; Robert W. Gordon, ‘Unfreezing Legal Reality: Critical Approaches to Law’, (1987) 15 Florida State University LR 195, 206–8. 26 Adams and Brownsword, Key lssues, 228–31, 302; Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’, (1976) 89 Harvard LR 1685, 1734; Ian R. Mcneil, ‘Efficient Breach of Contract: Circles in the Sky’, (1982) 68 Virginia LR 947, 968–9; M. J. Trebilcock, The Limits of Freedom of Contract (1993), 142. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 encroachments: between private and public 359 deter profitable deviations from the contract. A promisee who stubbornly insists on performance, where non-performance will not harm her in any way and performance would cause the promisor to lose a profitable op- portunity, must be perceived – from the perspective of a co-operative un- derstanding of contract – as abusing her rights. The Israeli rule grants a promisee a position of threatening leverage that can enable her to de- mand that the promisor purchase her release at a prohibitively high price and, at times, may even impede efficient reallocation of the promissory resource altogether. A rule that enables people to prevent others from improving their situations without any detrimental effect on anyone else cannot be required by (or correspond to) the values of trust, solidarity and sharing. 27 While rejecting both the measures of fair market value and net profits, the co-operative conception of contract requires a third alternative. The appropriate measure of recovery according to this conception cannot be a rule of ‘all or nothing’, as are the two rules considered thus far, since any such binary rule is antithetical to the prescriptions of sharing unexpected difficulties and benefits. Hence, the co-operative conception of contract re- quires a third rule, which divides between the parties the efficiency gain of the reallocation (that is, the difference between the promisor’s gain from the breach and the promisee’s expectation interest). 28 This third pos- sibility does not give the promisee the power to veto the beneficial alter- native transaction and thus does not encourage her to take a threatening ‘hold-out’ stance. At the same time, this alternative does not disregard the parties’ special commitment toward one another as contractual part- ners, and thus it requires that the promisor consider the interests of the promisee. In addition to compensating the promisee for her expectation interest, the promisor is required to share with her the unexpected bene- fits that arise over the course of their contractual relationship. 29 27 See, similarly, Robert W. Gordon, ‘Macaulay, Macneil, and Discovery of Solidarity and Power in Contract Law’, [1985] Wisconsin LR 565–9; Anthony T. Kronman, ‘A New Champion for the Will Theory’, (1981) 91 Yale LJ 404, 416. 28 Other authors have also proposed such a division. See Daniel Friedmann, ‘Good Faith and Remedies for Breach of Contract’, in: Jack Beatson and Daniel Friedmann (eds.), Good Faith and Fault in Contract Law (1995), 399, 411–12; William Goodhart, ‘Restitutionary Damages for Breach of Contract’, (1995) 3 Restitution LR 3, 12–13. 29 Implementing this approach can take two main forms: a precise rule that prescribes that in cases of this sort the parties should divide the reallocation profits into equal shares between them, or else a vague standard that would leave to the discretion of the court the decision as to how the reallocation profits are to be divided amongst the parties. The choice between these two types of norms requires difficult normative judgments which cannot be adequately addressed here. For my discussion of these issues see Dagan, ‘Restitutionary Damages’, 151–2. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 360 hanoch dagan Indeed, even turning from the framework of analysis of unilateral appro- priations to the framework of analysis of contractual relationship, there are still difficult normative questions. Social values are required in order to establish the entitlements of the parties against which infringements are measured. Appreciating the significance of the pre-existing entitlements of the parties is crucial for analysing the restitutionary doctrine governing encroachments in particular, and of private law in general. These entitle- ments cannot be deduced logically from concepts or just presupposed by the analyst. Setting these entitlements requires instead explicit normative discussion. IV. Agents as unauthorised authors It is possible to reach similar conclusions by analysing the third, and last, sub-field of encroachment law: the doctrine governing breaches of fidu- ciary duties. Consider, for example, the celebrated United States Supreme Court case of Snepp v. United States. 30 Snepp was a CIA agent who pub- lished a book about certain CIA activities without submitting it to a pre- publication review. This was an unequivocal violation of an express term of the employment agreement he had signed. The Supreme Court approved the imposition of a constructive trust on the benefits gained thereby so that the CIA would receive all the profits from the book. 31 The premise of this remedial response was the ‘extremely high degree of trust’ reposed in Snepp, which he had breached. 32 Given the fiduciary relationship be- tween Snepp and the CIA, the Court held, there should be a remedy that ‘is tailored to deter those who would place sensitive information at risk’. 33 Justice Stevens, with whom Justices Brennan and Marshall joined, dissented. The dissent expressed three major objections to the Court’s holding. First, Justice Stevens insisted that restitutionary damages were misplaced because Snepp was not unjustly enriched (and constructive trusts – he added – have nothing to do with deterrence). 34 Snepp’s profits did not derive in any way from his breach: they were not the product of Snepp’s failure to submit the book to a pre-publication review. On the contrary, had he performed this duty, the Government would have been obliged to give its clearance, and the very same profits would have been gained. Justice Stevens’s second objection was that the CIA’s protected inter- est, namely the confidentiality of its classified information and sources, 30 444 US 507 (1980). 31 Ibid. at 515–16. 32 Ibid. at 510. 33 Ibid. at 515. 34 See ibid. at 521 and 523. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 encroachments: between private and public 361 was not compromised: the Government had conceded that Snepp’s book did not contain any such information. The failure to submit it to pre- publication approval should not be regarded, said the dissent, as a breach of Snepp’s fiduciary duty as long as no confidentiality had been breached. These circumstances were but a garden-variety breach of con- tract, which, unlike breaches of fiduciary duties, did not justify any profits- based recovery. 35 Abreachofacovenantthatsupports a fiduciary duty should not be regarded as a breach of that duty. Finally, the dissenters’ last concern was that restitutionary damages would ‘enforce a species of prior restraint on a citizen’s right to criti- cize his government’. 36 The remedy is risky, Justice Stevens maintained, because the reviewing agency may ‘misuse its authority to delay the pub- lication of a critical work or to persuade an author to modify the content of his work beyond the demands of secrecy’. 37 The debate between the majority and the dissent in Snepp provides a good opportunity to evaluate two of the claims of this article: that de- terrence is not necessarily external to the relationships between plaintiff and defendant, and that encroachment law is situated between private and public. The starting point of any analysis of fiduciary law must be that the fiduciary’s duty of loyalty is constitutive of the fiduciary relationship, in which one person’s interests are entirely subject to another’s discretion. This duty of loyalty ‘becomes for purposes of this relationship an enti- tlement of the beneficiary’. 38 A second step must be a normative choice of the extent to which the beneficiary has control over her entitlement to the fiduciary’s loyalty and, thus, of the beneficiary’s capacity to deter breaches of such loyalty. Such deterrence, again, does not impact the rela- tionship between fiduciary and beneficiary from the outside. 39 Rather, it is just the remedial correlative of a normative judgment that no derogation from the beneficiary’s entitlement to the fiduciary’s loyalty should be allowed. Therefore, the availability of a profits-based recovery must be a function of the deterrence issue. However, as Robert Cooter and Bradley Freedman 35 See ibid. at 518–19. 36 Ibid. at 526. 37 Ibid. at 526. 38 Weinrib, ‘Restitutionary Damages’, 33. 39 Contra, ibid. at 33–4: ‘Since the meaning of this duty of loyalty is that the fiduciary cannot profit from the relationship, gains can be regarded as the material embodiment of the breach of duty Seen in this light, the fiduciary’s liability to disgorge profits is not an example of a policy of deterrence impacting the relationship from the outside, but is rather the remedial consequence that reflects the nature of the obligation owed by the fiduciary to the beneficiary.’ P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 362 hanoch dagan have demonstrated, deterrence in the context of fiduciary relations turns out to be intricate. 40 Two structural characteristics of the various cate- gories of fiduciary relationships make deterrence difficult. 41 (i) The beneficiary’s interests are subject to the fiduciary’s discretion; the fiduciary should control and manage the asset in the beneficiary’s best interest. (ii) The asset’s management involves risk and uncertainty and thus requires continual recalculations to determine the most productive course of action. This need for dynamic management precludes the possibility of dictat- ing the behaviour of the fiduciary by specific and easily enforceable rules. Furthermore, the standard prescribed by the duty of loyalty – that the fidu- ciary should not appropriate the beneficiary’s asset or some of its value – is also difficult to enforce, since profitable misappropriation is likely to be difficult to prove. The asymmetrical information concerning acts and results inherent to the fiduciary relationship makes it difficult for the beneficiary to distin- guish bad luck from the fiduciary’s misappropriation. 42 Due to the hard- ships of detection and proof, the beneficiary’s control over her entitle- ment to loyalty – embodied by the profits remedy for breaches – may be insufficient. 43 The beneficiary’s entitlement (and not any other reason that is exogenous to the parties’ relationship) requires some ‘reinforcement’ of the profits remedy if it is to vindicate control. In response, fiduciary law can grant the beneficiary control over entitlements that are not as central to the fiduciary relationship as loyalty, such as reporting requirements or the appearance of propriety. Indeed, fiduciary law creates a cluster of presumptive rules of con- duct that restrict the permissible scope of the fiduciary’s behaviour whenever possible conflicts of interest arise between the beneficiary and the fiduciary. 44 This bundle of rules – the most fundamental of which are 40 See Robert Cooter and Bradley J. Freedman, ‘The Fiduciary Relationship: Its Economic Character and Legal Consequences’, (1991) 66 New York University LR 1045. 41 See ibid., 1046–7. 42 See ibid., at 1051. 43 Cooter and Freedman argue that the reduced probability of enforcement reduces the deterrent effect of a profits remedy, because the probable gain from breach is always greater than the probable liability. See ibid., 1052. In so far as the probability of enforcement is related to factors extrinsic to the parties, it should not influence liability under the correlativity thesis. However, the difficulties of enforcement in the context under discussion are inherent to the fiduciary relationship, and thus may properly influence the normative definition of the beneficiary’s entitlement. 44 See Cooter and Freedman, ‘Fiduciary Relationship’, 1053–4. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 encroachments: between private and public 363 the rule against conflict of interest and the rule against secret profits – facilitates the proof of appropriation by inferring disloyalty from its appearance, either through conclusively presuming appropriation or by requiring the fiduciary to prove that she did not misappropriate the prin- cipal’s asset. Thus, these rules raise the enforcement probability and help to solve the deterrence problem. In order properly to vindicate the benefi- ciary’s entitlement in the fiduciary’s loyalty, the law treats these ancillary duties as themselves fiduciary duties and gives the beneficiary the right to a strong remedy for breaches of these entitlements. At this point one can appreciate the inadequacy of the dissent’s first two objections. If Snepp was obliged to notify the CIA before publishing infor- mation for profit, and if this obligation is to be perceived as an ancillary duty for which a profits remedy is appropriate, Snepp’s profits embody the breach of that duty and Snepp has in fact been unjustly enriched. Thus, once it is appreciated that deterrence may be an internal entail- ment of the beneficiary’s entitlement, and that effective deterrence re- quires some ancillary rules of presumptive and strict liabilities governing certain aspects of fiduciaries’ conduct, one can no longer dismiss out of hand the possible availability of a profits recovery for breaching a ‘merely’ ancillary obligation. And once this recovery may be a required entailment of the beneficiary’s entitlement, the ‘no unjust enrichment’ argument be- comes wholly question-begging. To say that the fiduciary has not been unjustly enriched is to assume that the beneficiary is not entitled to the profits gained by the breach of such ancillary obligation, thus posing the very question the ‘principle against unjust enrichment’ purports to resolve. 45 This does not mean that any breach of the fiduciary’s obligations should trigger restitutionary damages. Deciding which obligations should be deemed ancillary to the fiduciary’s duty of loyalty, and whether they should be backed up by a conclusive presumption of appropriation or by shifting the balance of proof to the fiduciary, requires a detailed anal- ysis, which is not necessary here. 46 For the purposes of this article, it is enough to emphasise that these are questions regarding the initial alloca- tion of entitlements between fiduciaries and beneficiaries, and are thus 45 I discuss elsewhere, in some detail, the broader claim that ‘unjust enrichment’ is but a conclusion merely in need of supportive normative arguments. See Dagan, ‘Restitutionary Damages’, 126–32. 46 For an economic analysis of this question, see Cooter and Freedman, ‘Fiduciary Relationship’, sub III. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 364 hanoch dagan both distributive (that is, public) and – at the same time – internal to the relationships between each fiduciary and her beneficiary. This conclusion can facilitate a better understanding of the debate in Snepp, but it cannot yield a value-free resolution thereof. The relation- ship of agents such as Snepp with the CIA are deemed fiduciary, due to the trust the agent enjoys respecting the CIA’s confidential information. Since the agent’s duty of loyalty is aimed, first and foremost, at preserving and vindicating the CIA’s control over the dissemination of such informa- tion, it seems that the obligation to submit materials to pre-publication review is a reasonable (ancillary) rule of conduct that can secure this control. This, however, does not necessarily tilt the scales in favour of restitu- tionary damages in cases like Snepp. A difficult question still remains as to whether the breach of this ancillary duty should lead to a conclusive pre- sumption of appropriation (as the majority’s view implies), or merely to a shift of burdens that would require the fiduciary to prove that she did not misappropriate. (If proof of misappropriation is required, no restitution- ary damages seem appropriate in Snepp, given the Government’s admis- sion that no confidential information has been revealed.) I believe that the most informative consideration for the resolution of this question lies in the dissent’s third concern, namely a normative judgment respect- ing prior restraint on the free speech of the CIA agents (this concern does not apply – it is important to emphasise – in many other fiduciary cases). 47 Indeed, just as in cases of the appropriation of resources such as land, patents or copyright, or in cases of breach of contract, the important correlativity between the defendant’s liability (and the applicable measure of recovery) and the plaintiff’s entitlement cannot absolve us from the difficult public decisions we need to make in order to set the entitlements in the first place. There is no way to isolate private law from public values. V. Conclusion Encroachments raise complex questions for the doctrine and theory of the law of restitution. This article focused on the choice of pecuniary remedy 47 A court making this normative decision might also consider the unusual situation in Snepp, where the beneficiary is more powerful relative to the fiduciary than in most such relationships. Perhaps such a powerful beneficiary does not need control over its fiduciaries’ ancillary duties, because it is better positioned than other beneficiaries to detect and to prove breach. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 encroachments: between private and public 365 for cases of appropriation of another’s resource, breach of contract and breach of fiduciary duties. This seemingly technical question turned out to require important value choices. However, since these normative choices shape the parties’ ex ante entitlements, they do not deprive restitutionary cases of their nature as encounters between a particular plaintiff and a particular defendant. As the title of this article claims, the restitutionary doctrine governing encroachments lies between private and public. P1: GKE/FYX P2: FCH CU074-Johnston CU074-13 October 11, 2001 1:7 Char Count= 0 366 [...]... exchange is inconceivable.24 At the other extreme, however, suppose that unimproved 20 21 22 23 24 Brown v Davis (1987) 514 So 2d 54 (Florida); Voss v Forgue (19 56) 84 So 2d 563 (Florida); Olin v Reinecke (1929) 3 36 Illinois 530; 168 NE 67 6 Manning v Wingo (1991) 577 So 2d 865 (Alabama); Sweeten v King (19 76) 29 NC App 67 2; 225 SE 2d 598 Cf Butler v Hayes (1997) 487 SE 2d 229 (Virginia) (denying an allowance,... purpose of minimising the aggregate loss resulting from the other party’s infringement In the case of mistaken improvements, as in these other instances, the law will sometimes impose an unquantifiable hardship on an innocent party for the sake of avoiding an appreciably greater hardship to another party Taken in isolation, the utilitarian objective of minimising aggregate hardship has nothing to do with... term permitted to recover in restitution for value of part- performance) Vulovich v Baich (1955) 2 86 App Div 403 at 405; 143 NYS 2d 247 at 250 Beacon Homes, Inc v Holt (1 966 ) 66 North Carolina 467 at 472, 474; 46 SE 2d 434 at 438, 439 James v Bailey (1974) 370 F Supp 469 at 472 (DVI) P1: FCH/FYX P2: FCH/FYX CU074-Johnston CHAPTER-14 380 QC: FCH/UKS T1: FCH January 16, 2002 16: 6 Char Count= 0 andrew kull... January 16, 2002 16: 6 part viii Improvements 367 Char Count= 0 P1: FCH/FYX CU074-Johnston P2: FCH/FYX CHAPTER-14 QC: FCH/UKS T1: FCH January 16, 2002 16: 6 368 Char Count= 0 P1: FCH/FYX P2: FCH/FYX CU074-Johnston 14 CHAPTER-14 QC: FCH/UKS T1: FCH January 16, 2002 16: 6 Char Count= 0 Mistaken improvements and the restitution calculus Andrew Kull I The measure of recovery Mistaken improvements are interesting... taken into account in determining the relief to which the plaintiff is entitled This accounting may be observed, in the mistaken-improvement cases, in the fact that the availability of a remedy depends a great deal on what might be called the equities of the parties So a mistaken improver who has acted negligently – not even bothering to obtain a proper survey before building his cabin, for instance... action de in rem verso, contribution under the Rhodian law, and obligations of relief among co-obligants Later writers, while making some variations to the scheme – in particular by distinguishing between repetition (repayment of money) and restitution (return of things) – did not depart from it in essentials.15 In two seminal articles published in 1985, 16 Peter Birks identified the damaging consequences... elsewhere Other instances of forced exchange offer the most direct analogies: eminent domain, or the laws that sometimes permit private parties to obtain property from unwilling sellers.35 These forced transactions 33 34 35 Such factors are discussed in Smith v Stewart (1983) 10 Ark App 201; 66 2 SW 2d 202 Pull v Barnes (1 960 ) 142 Colorado 272; 350 P 2d 828; McKelway v Armour (1854) 10 NJ Eq 115 Nineteenth-century... (1841) 4 Fed Cas 127 (No 1,875) (Cir Decisions, Maine), favouring more liberal relief for the mistaken improver, included a direct appeal to the authority of Roman law Somerville v Jacobs (1 969 ) 153 W Va 61 3 at 62 9; 170 SE 2d 805 at 813–14 (‘A good judge will decide differently according to the parties and circumstances in issue.’) Cels D 6 1 38, quoted in Verse, ‘Improvements and Enrichment’, 88 A familiar... improver’s costs is based partly on enrichment, partly on indemnification When even an innocent landowner is subjected to a forced exchange, the liability is based partly on enrichment, partly on the extraneous legal objective of avoiding a disproportionate hardship and the resulting economic waste The difficulty that remains is the familiar one of defining what is meant by a liability in restitution If the... NE 2d 237; Cano v Lovato (19 86) 105 New Mexico 522; 734 P 2d 762 The statutory provisions are identified and compared by Kelvin H Dickinson, ‘Mistaken Improvers of Real Estate’, (1985) 64 North Carolina LR 37–75 For a real-life case approaching the textbook illustration, see Dunnebacke Co v Pittman (1934) 2 16 Wisconsin 305; 257 NW 30, denying restitution to a builder who (in the mistaken belief that . v. Forgue (19 56) 84 So 2d 563 (Florida); Olin v. Reinecke (1929) 3 36 Illinois 530; 168 NE 67 6. 21 Manning v. Wingo (1991) 577 So 2d 865 (Alabama); Sweeten v. King (19 76) 29 NC App 67 2; 225 SE 2d. CHAPTER-14 January 16, 2002 16: 6 Char Count= 0 part viii Improvements 367 P1: FCH/FYX P2: FCH/FYX QC: FCH/UKS T1: FCH CU074-Johnston CHAPTER-14 January 16, 2002 16: 6 Char Count= 0 368 P1: FCH/FYX. Brownsword, Key Issues in Contract (1995), 200–2, 215, 217, 220, 223–5, 301–3; Roberto M. Unger, ‘The Critical Legal Studies Movement’, (1983) 96 Harvard LR 561 , 63 2, 63 9, 64 1–4; Hugh Collins, ‘The