Listening Before Intervening: A Restitutionary Framework for Ethical Financial Service Design

Abstract

This article reframes restitution as a proactive framework for financial service design rather than a mechanism applied only after harm occurs. While traditional restitution operates ex post to address unjust enrichment arising from mistake and related doctrines, modern consumer financial markets pose a different challenge. In contexts shaped by information asymmetry, behavioral bias, and product complexity, enrichment often results from predictable patterns of consumer misunderstanding rather than isolated transactional errors.
Drawing on behavioral economics and financial literacy research, the paper argues that financial institutions may derive unjust gains when operating within conditions of bounded rationality and limited financial capability. It advances a “listening-based” approach, developed through a bank–university collaboration, in which consumer data identifies misunderstanding prior to product deployment, repositioning restitution as an ex ante governance tool. Doctrinally, the article highlights the limits of mistake and the voluntary payment rule and proposes recognizing foreseeable misunderstanding as a basis for unjust enrichment, aligning restitution with contemporary market realities.