Deposits: At the Intersection of Contract, Restitution, Equity and Statute
Whether a partial payment is recoverable in restitution by a party in breach of contract depends on the classification of the payment as a deposit or a part-payment. A part payment may be recoverable in unjust enrichment if the contract is terminated and a vitiating factor can be found (usually total failure of consideration in this context), and subject to a counterclaim for damages. However, a deposit is intended to be earnest for performance and will not be recoverable, at least generally. Six questions will be considered: (1) Is the penalty rule applicable to a deposit? (2) If not, is the deposit subject to any other common law control? (3) Is equitable relief against forfeiture applicable? (4) Does a stipulation of “non-refundable” payment describe the essential feature of a deposit as generally not subject to a restitutionary claim, or does it purport to exclude such a claim completely? (5) If the latter, is the exclusion effective? (6) If it is, does it reveal a statutory gap in the regulation of exclusion clauses?