concurring:
I concur in the judgment of reversal. Appellee, A & M, did confer several benefits on appellant, TVL, in circumstances warranting compensation under In re Rich, 337 A.2d 764, 766 (D.C.1975); ante at 159. However, because the only available theory of recovery in the absence of a contract is unjust enrichment — a contract implied in law — A & M had the burden of proving the value of those benefits to TVL. Nordin Construction Co. v. City of Nome, 489 P.2d 455, 464 n. 9, 465 (Alaska 1971). As the court’s opinion makes clear, A & M did not do so.
*161A & M claimed it provided services to TVL valued at $13,000 by reference to time spent. A & M’s costs or charges, however, are not necessarily equatable with the value of TVL’s benefits. Id. at 467. But, even if they were, the trial court found that the amount of A & M’s time was difficult to quantify, and that A & M had not proved it had conferred a $13,000 benefit on TVL.
Nonetheless, eschewing an award of “nominal damages,” the court inexplicably took a “twelve or thirteen thousand” dollar base benefit, found A & M “three or four” times more at fault than TVL in the mutual mistake as to whether there was a contract under which A & M could expect payment, and, applying “a new little theory of mine on this,” arrived at a benefit of $2,500 based on comparative fault.
As an abstract proposition, I find the court’s “new little theory” appealing. Under Rich, supra; ante at 159, A & M would receive the full value of the benefit conferred, whereas, under the new Restatement approach, A & M would receive the full value or nothing at all, depending on whether TVL’s conduct in negotiating the benefit appeared “unconscionable in purpose or effect.” Restatement (Second) of Restitution § 6(2) (Tent. Draft No. 1, 1983).1 In contrast, a comparative fault gloss may, under some circumstances, be the most equitable approach, since it addresses the common situation where neither party is blameless. Such an approach attempts both to evaluate the extent to which the person who seeks compensation “reasonably notified” the benefited party of expected payment, Rich, supra, 337 A.2d at 766 (fourth criterion), and to address the extent to which the benefited party’s conduct in negotiations appeared “unconscionable in purpose or effect.” Restatement, supra, § 6(2).
The problem in this case, of course, is that the theory does not fit the facts. The value of the benefit to which the trial court applied the comparative fault ratio had not been established. In these circumstances, the trial court should have left the parties where it found them. Anderco, Inc. v. Buildex Design, Inc., 538 F.Supp. 1139, 1143 (D.D.C.1982); Nordin Construction Co., supra, 489 P.2d at 465-66; compare Edmund J. Flynn Co. v. LaVay, 431 A.2d 543 (D.C.1981) (discussed ante at 160). Accordingly, I too, would reverse with instructions to vacate the order awarding A & M $2,500.
. The Restatement (Second) of Restitution, Tentative Draft No. 1, § 6(2) (1983) provides:
A person whose conduct in negotiating for a gain or advantage results in a benefit to him and a loss or expense to another may be unjustly enriched by the benefit if, in the absence of compensation to the other, the conduct appears unconscionable in purpose or effect.
Comment b on § 6 provides:
In some instances the person owing restitution has enjoyed measurable increase of wealth. If in addition his conduct in negotiations has led the other party into loss or expense in a firm and well-founded expectation that a contract would eventuate, the circumstances suggest that restitution is owed under the principle of § 1 [Unjust Enrichment]. Subsection (2) of the present section states that restitution is owed if, in view of the loss or expense, the conduct of the person enriched appears unconscionable in purpose or effect.