The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.

In England and Wales the House of Lords case of Attorney-General v Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy (George Blake), for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.

The basis for restitutionary damages is much debated, but can usually seen to be based on denying a wrongdoer any profit from his wrong. The really difficult question, and one which is currently unanswered, relates to what wrongs should lead to the availability of this remedy.

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