body: 1. How does "indemnity" differ from "restitutionary/reliance damages"?
  2. Why do these four textbooks all still write "indemnity", when the first textbook quoted below advises it's "more accurate to describe it as a personal
  restitutionary claim"?
  
  
  McKendrick. [*Contract Law: Text, Cases, and Materials* (2018 8 ed)](https://www.amazon.co.uk/Contract-Law-Text-Cases-Materials/dp/019880816X/ref=dp_ob_title_bk). p 611.
  
  
  
  > 
  > (e) RESCISSION AND AN ‘INDEMNITY’
  > ---------------------------------
  > 
  > 
  > A claimant who rescinds a contract may also be able to bring a claim for what is often referred
  >  to as an indemnity, **although it is probably more accurate to describe it as a personal
  >  restitutionary claim.** In *Whittington v. Seale-Hayne* (1900) 82 LT 49 the plaintiff entered
  >  into a lease of a farm which he intended to use for breeding prize poultry. He was induced
  >  to enter into the lease by misrepresentations made by the defendant that the premises were
  >  in a good state of repair and in a sanitary condition. The premises were not sanitary and
  >  the buildings were in a state of disrepair. As a result the plaintiff became ill and many of the
  >  birds died. The plaintiff claimed that he was entitled to set aside the lease and recover an
  >  indemnity in respect of the losses which he had suffered in the performance of the contract
  >  before it was set aside. It was held that he was not entitled to recover an indemnity in respect
  >  of the loss of his birds and the illness which he suffered. At the time at which the case
  >  was decided damages could only be recovered in respect of a fraudulent misrepresentation
  > 
  > 
  > 
  
  
  p 612.
  
  
  
  > 
  > (see p. 596, Section 5) and the plaintiff could not establish that the defendant had made
  >  the misrepresentations fraudulently. But the plaintiff was able to recover the rent paid and
  >  the cost of the repair work that had been done pursuant to an order issued by the local authority.
  >  These obligations were imposed on him by the terms of the lease. The reason for his
  >  entitlement to recover these payments was that they had resulted in an enrichment to the
  >  defendant (either through the direct payment of rent or by carrying out the work ordered
  >  by the local authority) and, when the lease was set aside, the defendant became subject to
  >  a restitutionary liability to repay to the plaintiff the value of the benefits which he had received
  >  as a result of the plaintiff’s performance of his obligations under the lease. But he was
  >  not subject to any wider liability to pay compensation to the plaintiff for the losses which
  >  he had suffered.
  > 
  > 
  > 
  
  
  [Richard](https://www.uclan.ac.uk/staff_profiles/richard-taylor.php) and [Damian](https://www.slaughterandmay.com/who-we-are/partners/damian-taylor/) Taylor. [*Contract Law Directions* (2019 7 ed)](https://global.oup.com/academic/product/contract-law-directions-9780198836599?&lang=en&). p 185.
  
  
  
  > 
  > ### Indemnity for expenses incurred under an obligation
  > 
  > 
  > An ancillary order which can also be made along with rescission (even for innocent misrepresentation)
  >  is the award of an indemnity. This is a monetary award but should not be confused
  >  with damages as it is much more limited. It only covers expenditure which the
  >  representee was obliged to incur under the terms of the contract which is being rescinded
  >  and which has benefited the other party. It is a restitutionary rather than compensatory remedy
  >  and is part of the restitution to the starting position which rescission is designed to
  >  achieve. If money has been paid directly to the other party then of course it will be returned
  >  as part of the remedy of rescission itself; the indemnity is instead concerned with payments
  >  made under the contract to third parties. In *Whittington v Seale-Hayne* (1900) the indemnity
  >  included money paid out in rates and to do repairs which the tenant was obliged to do under
  >  the lease and which benefited the landlord directly, but it did not extend to medical expenses
  >  and loss of stock which, although foreseeable, were not incurred under an obligation contained
  >  in the lease. (These latter, and other items claimed, would only be recoverable if a right
  >  to damages could have been established, which at the time would have meant proving
  >  fraud—the increased availability of damages today would mean that the limited right to an
  >  indemnity is less commonly relevant.)
  > 
  > 
  > 
  
  
  Paul Davies. [*JC Smith's The Law of Contract* (2018 2 ed)](https://www.amazon.co.uk/Smiths-Law-Contract-Paul-Davies/dp/0198807813/ref=dp_ob_title_bk). p. 237. 
  
  
  
  > 
  > ### (b) Indemnity
  > 
  > 
  > If a contract is rescinded, that means that the contract is wiped out from the start, so it is
  >  logically impossible also to recover damages for breach of contract (which assume that the
  >  contract was fully performed). However, a representee may be able to rescind a contract
  >  and be paid an indemnity to cover expenses which would necessarily have been incurred
  >  by the representor anyway. Otherwise, the representor would be unjustly enriched by the
  >  representee’s expenditure.51 This is illustrated by *Whittington v Seale-Hayne*.52 The claimants
  >  were induced to take a lease of a farm used for breeding prize poultry by the defendant’s
  >  misrepresentation that the premises were in a sanitary condition and a good state of repair.
  >  The claimants paid various rates and carried out repairs under the covenants in the lease
  >  before rescinding the agreement. Farwell J held that they were entitled to an indemnity for
  >  such expenses, since they would have had to be paid anyway by whoever had the farm at the
  >  time. However, the scope of the indemnity was limited to expenses incurred which benefited
  >  the defendant: the claimant received no indemnity for the loss of poultry, nor for lost profits.
  > 
  > 
  > 
  
  
  [*Anson's Law of Contract* (2016 30 ed)](https://www.amazon.co.uk/Ansons-Law-Contract-Jack-Beatson/dp/0198734786/ref=pd_lpo_sbs_14_t_0?_encoding=UTF8&psc=1&refRID=ZW82SGPZDB8D0GKSVMV4). p 335.
  
  
  
  > 
  >       The distinction between damages and an indemnity as it works out in practice may
  >  be illustrated by the case of *Whittington v Seale-Hayne*,94 where the Court adopted the
  >  narrower principle suggested by Bowen LJ:
  > 
  > 
  > Poultry farmers had been induced to take a lease by the defendant’s non- fraudulent
  >  misrepresentation that the premises were sanitary. This was not the case, and in consequence
  >  of the contamination of the water supply, their manager fell ill and the poultry died. They
  >  claimed rescission of the lease, and an indemnity to cover the value of the stock, loss of profit
  >  on sales, loss of breeding season, medical expenses of the manager, rates, rent, and money
  >  spent on outbuildings, etc. They had also been compelled by the local council to renew the
  >  drains, and this item, too, was included.
  > 
  > 
  > It was held that the poultry farmers were entitled to have the lease rescinded, and to
  >  recover what they had spent on rent, rates, and the renewal of the drains, since these
  >  were expenses incurred under the covenants in the lease or arising necessarily out of
  >  the occupation of the property, and thus ‘obligations created by the contract’. Their
  >  claim for payment in respect of the other items of loss was not allowed, since these
  >  were damages, there being no obligation to carry on a poultry farm on the leased
  >  premises.
  >  In practice, an indemnity is a useful remedy only where the misrepresentation is
  >  wholly innocent. In cases of fraudulent or negligent misrepresentation the claimant
  >  may claim damages on the tort measure, in addition to rescinding the contract.95
  > 
  > 
  > 
  
  
  
title: Indemnity v. Restitutionary/Reliance Damages