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This Article presents a normative framework for analyzing how the law of restitution responds to mistakes in the unilateral conferral of benefits, such as mistaken payments, mistaken provision of services, and mistaken improvements of property. The Article explores the two main perspectives typically applied to mistakes analysis. First, from the perspective of mistakes as involuntariness, mistakes may invite the law's corrective measures to reinstate the commands of a mistaken party's will thus expanding her freedom of action and securing the integrity of her self. The law should respond favorably and accord restitution if such an award is not likely to harm the recipient or if the recipient should fairly bear such harm. Second, from the perspective of mistakes as potential accidents with casualties, mistakes should be analyzed in terms of minimizing social costs by inducing the appropriate avoidance behavior on the part of both parties, properly allocating between them the costs of mistakes and minimizing the system's administrative costs. The law should grant restitution if it is supported by such an efficiency analysis. Using these autonomy- and efficiency-based analyses of mistakes, this Article concludes with an evaluation of the prevailing rules of the law of mistakes as restated by a recent discussion draft of the Restatement (Third) of Restitution and Unjust Enrichment.

Original languageEnglish
Pages (from-to)XI
JournalTexas Law Review
Issue number7
StatePublished - 2001


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