Restitution Following Termination for Breach of Contract. Safeguards Against Opportunism and the Role of Consideration

This article provides a comparative overview about the claim for return of the price as a remedy for breach of contract. It examines the differences between common law and civil law systems, focusing on three key factors: (1) the approach to substitutionary relief when the claimant cannot directly counter-return the conferred benefits, (2) the relationship between restitution and damages, and (3) the significance of the bargained-for exchange following termination for breach of contract. Underlying these three factors is the issue of how to prevent the remedy from incentivizing opportunistic behaviour by the aggrieved party.