Page:Harvard Law Review Volume 10.djvu/538

512 have paid him for the use of it, since he made no effort to rent it. There is only one other supposition possible, to wit, that the plaintiff was deprived of rents which the defendant ought to have paid him. Such a duty on the part of the defendant cannot be explained by the principle of unjust enrichment without a vicious circle, as thus: the defendant is unjustly enriched by the amount of rents which he ought to pay and does not; but he ought to pay those rents, because, if he does not, he is unjustly enriched.

In Phillips v. Homfray a recovery was denied; but there are cases where the defendant, by a wrongful use of the plaintiff's property, has benefited himself without causing any loss to the plaintiff, and is nevertheless held in the cases to a liability for all the profits which he has made. To allow a recovery in these circumstances is difficult to justify. It certainly cannot come within any notion of remedy as remedy, because, ex hypothesi, the plaintiff has suffered no damage, and there is no damage to repair. Neither is there anything for the defendant to restore. For this reason also the plaintiff cannot bring himself within the principle of enrichment. A recovery therefore, if allowed, reduces itself to a mere punishment, on the theory that no one shall take an advantage by his own wrong. It is a measure of punitive, not remedial, justice, and can be upheld only on the principle that underlies the treble or punitive damages sometimes awarded on a breach of contract. Whether punishment for a wrong should ever take the form of permitting a recovery by a private individual in excess of his own loss is certainly, as a matter of justice, a very debatable question.

There might be many more discussions of the author's cases; but I have given enough to indicate both my agreements and my differences with his doctrine. The whole matter may be summed up in a few words. When the plaintiff can establish that his loss is the defendant's gain, and that the defendant is guilty of a breach of a consensual obligation, or of a tort, he can by action compel restitution in value. So far as this principle agrees with the learned author's results, those results seem to me to be sound; but that beyond these limits there is any principle of unjust enrichment seems to me to be at least questionable.

Everett V. Abbot.