The right of rescission and restitution generally exists as an alternative remedy where there has been repudiation or a material breach of a contract, and is most commonly exercised when the aggrieved party has performed fully or in part, and wishes to recover what he has given or its value. This choice of remedies was not allowed by the early English law,l and there are still many exceptions and inconsistencies in the application of the rule, which are due in part to the fact that it has been developed very largely under cover of the fictitious declaration in indebitatus assumpsit, and of equally fictitious inferences that a refusal to perform a contract indicates assent to rescind it and restore what has been given under it. The erroneous basing of damages for breach of contract in some cases on the value of what the plaintiff gave 2 may also have played a part. As may be observed in other branches of the law, the English cases are more conservative than the American - less ready to accept a new general rule varying from early precedents; so that the principle stated above must be taken only with very considerable qualifications as a statement of the law of England. Indeed, that principle is directly at variance with statements of law made in modern English cases - statements which would doubtless in many classes of cases be acted on.8 In the United

1 The earliest cases allowing an action. for restitution against a defendant guilty of breach of contract, and who might have been sued on the contract for damages, are Dutch p. Warren, 1 Str. 406, and Anonymous, 1 Str. 407, decided in 1721; but in the first of these decisions, though the action was in form for restitution, the plaintiff's damages were restricted to the value of what he ought to have received by the contract. No general recognition of a right to restitution as a remedy for breach of contract existed prior to decisions of Lord Mansfield and Lord Kenyon at the end of the eighteenth century.

2 See supra, Sec.Sec. 1338, 1341.

3 See, e. g.t James v. Cotton, 7 Bing. 266, 274, per Tindal, C. J.; Street v.

States though there are exceptions to the rule, it may safely be laid down as a general principle. The following sections show its applications and limitations.