Page:Harvard Law Review Volume 10.djvu/524

498 498 HARVARD LAW REVIEW, defendant converts property of the plaintiff to his own use, the plaintiff not only loses the property, but the defendant gains it. Now the defendant's original obligation was to refrain from inter- ference with the property, and this obligation still continues. His continued retention is a continued breach of this duty, and there is but one way in which he can end the breach, and that is by returning the property in the very form in which he took it. His negative obligation not to interfere is thus transformed by the breach into a positive duty to restore. This secondary obligation is frequently enforced by the courts. The action of replevin as common in American jurisdictions is one mode of enforcement, and the equitable remedy of declaring the defendant a constructive trustee of the property and directing him to return it is another. This may be called specific restitution. There are other cases in which the plaintiff, because what the defendant has gained is lost, destroyed, or for some other reason is incapable of restitution, is unable to have specific restitution, and there are still other cases in which he may not care to have specific restitution, even when it is possible. In such an event, he is allowed to recover the pecuniary value of what the defendant has received. This may be called restitution in value as distinguished from specific restitution. Usually, of course, the measure of restitution in value would equal the measure of damages, but it might at times differ considerably. Damages would be computed solely on the plaintiff's loss, without reference to what the defendant should profit ; but restitution in value would be measured by the worth of the property in the defendant's hands, which might be greater or less than the plaintiff's loss. It remains to consider the modes of remedy upon the breach of a consensual right. These rights may in some cases be positive, requiring the defendant to act, and in them specific reparation is often possible. Such a remedy is common under the name of specific performance. Reparation in value, or damages, is possible in all cases, and is in fact the most common remedy. Further discussion of these remedies is not necessary. In all instances of a breach of right, the plaintiff may forgive the wrong, or, to use the more technical term, may waive it. The essence of such an act, however, is that the defendant in effect denies the right, and the plaintiff yields it up. It is the conjoint action of the two, therefore, which destroys it. This is as true of