“A person upon whom a tort has been committed and who brings an action for the benefits received by the tortfeasor is sometimes said to ‘waive the tort.’ ” Restatement of Restitution § 525 (1937).
“ ‘Waiver of tort’ is a misnomer. A party only waives a tort in the sense that he elects to sue in quasi-contract to recover the defendant’s unjust benefit rather than to sue in tort to recover damages; he has a choice of alternative remedies. But the tort is not extinguished. Indeed it is said that it is a sine qua non of both remedies that he should establish that a tort has been committed.” Lord Goff of Chieveley & Gareth Jones, The Law of Restitution 605 (3d ed. 1986).
