LAW 505-002 – Contracts I

Restatement Third of Restitution § 31


Unenforceability

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  1. A person who renders performance under an agreement that cannot be enforced against the recipient by reason of
    1. indefiniteness, or
    2. the failure to satisfy an extrinsic requirement of enforceability such as the Statute of Frauds,
    has a claim in restitution against the recipient as necessary to prevent unjust enrichment. There is no unjust enrichment if the claimant receives the counterperformance specified by the parties' unenforceable agreement.
  2. There is no claim under this section if enforcement of the agreement is barred by the applicable statute of limitations, nor in any other case in which the allowance of restitution would defeat the policy of the law that makes the agreement unenforceable. Restitution is appropriate except to the extent that forfeiture is an intended or acceptable consequence of unenforceability.