POSNER, Circuit Judge.

The district judge granted summary judgment for the defendant, Polaris, a manufacturer of snowmobiles and other vehicles, in this diversity suit by ConFold for breach of contract and unjust enrichment. Polaris used to ship its vehicles in disposable containers, but in 1993 it began considering the possibility of using returnable containers instead. ConFold was a new company that wanted to produce such containers, and in the following two years, assisted by a management consulting and software development firm named CAPS Logistics, it conducted a “reverse logistics analysis” of Polaris’s shipping needs. That is an analysis of how best to deal with goods returned by customers, for example whether to refurbish and resell them, recycle them, reuse their components, sell them as scrap, or tell the customer to discard them. Sarah Mason, “Backward Progress,” Industrial Engineer, Aug. 1, 2002, p. 3; Patricia J. Daugherty, “Information Support for Reverse Logistics: The Influence of Relationship Commitment,” 23 J. Bus. Logistics 85 (2002). It was conducted pursuant to an agreement, prepared by ConFold, between it and Polaris that was entitled “Mutual Non-Disclosure Agreement — Logistics Consulting Version.” That agreement is the basis of ConFold’s claim of breach of contract.

Two months after the agreement was signed, Polaris requested proposals for the design of a returnable container that would fit its needs. The request was sent to nine firms, including ConFold. All Con-Fold was told was that “your design will be one of nine considered at this point.” Polaris accepted none of the proposals. But a few years later it designed a returnable container and subsequently began using containers manufactured by a firm to which it had given the design. ConFold claims that Polaris’s design was based on the design that ConFold had submitted to Polaris in response to the request for proposals.

The breach of contract issue is whether the “Mutual Non-Disclosure Agreement— Logistics Consulting Version” bound Polaris not to reveal to a third party any returnable-container design that ConFold submitted to Polaris. The title of the contract suggests it did not, that the scope of the nondisclosure agreement was confined to reverse logistics analysis. The suggestion is reinforced by the timing; for when the. contract was signed, the dealings between the parties related only to that analysis, which ConFold was to conduct for Polaris. The preamble to the contract states, moreover, that “ConFold has infoi'mation relating to its proprietary software systems, documentation, and related consulting services which it considers to be proprietary,” and the phrase “software systems, documentation, and related consulting services” refers to the reverse logistics analysis itself, for it was to that analysis that the software, documentation, and consulting services pertained. The implication is that the only proprietary information that ConFold would be revealing to Polaris would be information relating to the analysis.

This interpretation is bolstered by the statement in the contract that it is the “entire Agreement between the two parties concerning the exchange and protection of proprietary information relating to the program ” (emphasis added). The only program in the-contemplation of the parties was the software program to be used to produce the reverse logistics analysis, and the information that would be proprie*955tary was the software and other materials relating to that analysis. It is one thing to determine whether a customer ought to switch to returnable containers and another to design the containers that the customer will use if he does switch. There is no hint in the contract that the design of containers was within its scope.

The district judge might have decided that the contract unambiguously excluded design information, in which event no evidence beyond the contract itself would have had to be considered. Especially when dealing with a substantial contract between “commercially sophisticated parties ... who know how to say what they mean and have an incentive to draft their agreement carefully,” Bank of America, N.A. v. Moglia, 330 F.3d 942, 946 (7th Cir.2003), there is great merit to the rule that the meaning of an unambiguous contract is a question of law rather than of fact, e.g., Columbia Propane, L.P. v. Wisconsin Gas Co., 250 Wis.2d 582, 640 N.W.2d 819, 826 (2001), rev’d on other grounds, 261 Wis.2d 70, 661 N.W.2d 776 (2003); Insurance Co. of North America v. DEC Int’l, Inc., 220 Wis.2d 840, 586 N.W.2d 691, 693 (1998), with the consequence “that unambiguous contractual language must be enforced as it is written.” Town of Neenah Sanitary Dist. No. 2 v. City of Neenah, 256 Wis.2d 296, 647 N.W.2d 913, 916 (2002); see also Folkman v. Quamme, 264 Wis.2d 617, 665 N.W.2d 857, 864 (2003). The rule enables contract disputes to be resolved quickly and cheaply, “protects the parties against the vagaries of the litigation process — a major reason for committing contracts to writing— without too great a risk of misinterpretation,” and by thus minimizing both contractual transaction costs and uncertainty increases the value of contracts as means of conducting business. Bank of America, N.A. v. Moglia, supra, 330 F.3d at 946.

Enforcing contracts as written has particular merit when the party that drafted the contract, which is to say ConFold (though, as we’ll see, ConFold was largely copying an earlier contract drafted by someone else), is arguing that it should be relieved from the consequences of having neglected to spell out its rights concerning the very core of the transaction. Walters v. National Properties, LLC, 282 Wis.2d 176, 699 N.W.2d 71, 75 (2005); Tranzad Technologies, Ltd. v. Evergreen Partners, Ltd., 366 F.3d 542, 546 n. 2 (7th Cir.2004); Harris v. Union Electric Co., 787 F.2d 355, 365 n. 7 (8th Cir.1986). For the only subject of the contract was confidentiality. Polaris, though it knew that ConFold manufactured returnable containers, couldn’t be expected to peek into ConFold’s mind and discover that ConFold thought the duty of confidentiality extended to materials, namely container designs, that were neither mentioned in the contract nor germane to the project for which Polaris had hired ConFold, which was a consulting rather than a design project.

It is true that a contract can be clear on its face — clear, that is, to a reader not familiar with the commercial context — yet still be ambiguous when that context is restored. That is the domain of “extrinsic” or “latent” ambiguity. Dispatch Automation, Inc. v. Richards, 280 F.3d 1116, 1121 (7th Cir.2002); Evergreen Investments, LLC v. FCL Graphics, Inc., 334 F.3d 750, 756 (8th Cir.2003); Mews v. Beaster, 279 Wis.2d 507, 694 N.W.2d 476, 479 (2005). The parties to a sale of cotton may have specified that the cotton be shipped on the ship Peerless — nothing ambiguous about such a provision to the uninformed reader — but if it turns out that there are two ships by that name to which the contract might refer, the contract is revealed as ambiguous and extrinsic evidence (evidence beyond the words of the contract) is admissible to help resolve the *956ambiguity. Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864).

The district judge found the contract in this case ambiguous, but not because of anything in the commercial context. Rather, he thought it ambiguous on its face, requiring him to consider extrinsic evidence, First Bank & Trust v. Firstar Information Services, Corp., 276 F.3d 317, 322 (7th Cir.2001) (Wisconsin law), because of the further statement in the preamble that “ConFold and Polaris are desirous of exchanging information for purposes of both companies developing future business with each other.” The referent of “future business” could just be the reverse logistics analysis, which had not begun because Polaris refused to approve the project until a confidentiality agreement was signed; it was in response to that demand that Con-fold submitted the agreement. But a more natural reading, reinforced by the fact that the quoted language is in that agreement and the logistics analysis is the subject of the agreement and thus “present” rather than “future” business, is that the reference was to a possible future sale by ConFold of returnable containers to Polaris. The parties hoped not only that the exchange would enable successful completion of the analysis but also that, if so, it might provide the foundation for a fruitful relationship at the next stage, when (and if) Polaris went into the market to buy returnable containers, possibly from Con-Fold. It is not unusual for a firm to be hired first as a consultant to advise a buyer on his needs, and later, when those needs are formulated, to bid to supply them; and ConFold’s initial proposal to Polaris for the reverse logistics analysis actually quoted a price for additional services — including design.

The quoted language is best understood, however, as merely an explanation for why the parties were exchanging information, and committing to its confidentiality, concerning the reverse logistics analysis. They hoped to do future business; they did not commit to. ConFold’s interpretation lacks sensible limits. It spreads the blanket of confidentiality over “exchanging information” — any information. This would require that any information the parties exchanged, including their phone numbers, be kept confidential (forever?), and that is an implausible intention to impute to them.

But having rightly or wrongly decided that the contract was ambiguous, the district judge turned to the extrinsic evidence — and concluded that it clinched Polaris’s interpretation of the contract rather than creating a triable issue. The briefs in our court contain a confusing discussion of how a court should treat extrinsic evidence under various assumptions. ConFold mistakenly concedes that if that evidence is undisputed, the judge can interpret the contract without recourse to a trial. Not so; for if there is tension between that evidence and the words of the contract, or if for any other reason the meaning of the contract remains uncertain even after the extrinsic evidence is presented, there must be a trial to determine the contract’s meaning. In re Modern Dairy of Champaign, Inc., 171 F.3d 1106, 1109 (7th Cir. 1999); Mathews v. Sears Pension Plan, 144 F.3d 461, 468 (7th Cir.1998). The task of the trier of fact in a contract case includes putting together bits and pieces of evidence in order to create a convincing mosaic of meaning, rather than just resolving outright conflicts in extrinsic evidence. Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1205 (7th Cir.1984) (Wisconsin law).

Nevertheless the undisputed extrinsic evidence so strongly supported Polaris that, considering that the language of the contract was only minimally ambiguous, a trial could have had but one out*957come. For it turned out that the confidentiality agreement had been copied from ConFold’s confidentiality agreement with CAPS, a contract drafted by CAPS and limited to that firm’s proprietary software and related intellectual property; CAPS does not design containers. Moreover, ConFold had a form confidentiality agreement “specific for design” but did not ask Polaris to sign it.

So summary judgment was properly granted on the contract claim, and we turn to the other claim, which is for unjust enrichment. ConFold contends that by exploiting its design for returnable containers Polaris wrongfully enriched itself to the tune of more than $25 million. Polaris denies that the returnable containers that it is using are based on ConFold’s design, but the district judge did not reach that issue; nor need we.

ConFold argues that Minnesota law governs the unjust enrichment claim, Polaris that Wisconsin law does. (The contract claim is governed by general principles of contract law, rather than anything special to the law of either state.) Wisconsin law denies recoveiy for unjust enrichment if all the defendant has done is use (to his profit) an idea of the plaintiff that is not a trade secret. Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis.2d 202, 267 N.W.2d 242, 249 (1978); Abbott Laboratories v. Norse Chemical Corp., 33 Wis.2d 445, 147 N.W.2d 529, 541 (1967). Minnesota law contains hints of a contrary view. Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 302, 306-07 (Minn.App. 1987); Tate v. Scanlan Int’l, Inc., 403 N.W.2d 666, 671-72 (Minn.App.1987); Micro Display Systems, Inc. v. Axtel, Inc., 699 F.Supp. 202, 205 (D.Minn.1988) (Minnesota law). We doubt that there is a real conflict, for reasons explained below. But in any event the district judge was correct that Wisconsin would apply its own law to a case such as this. The Wisconsin cases adopt a presumption in favor of applying Wisconsin law to cases litigated in the state, as this case was. State Farm Mutual Automobile Ins. Co. v. Gillette, 251 Wis.2d 561, 641 N.W.2d 662, 676 (2002); Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 204 N.W.2d 897, 902-03 (1973); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408, 416-17 (1965). The presumption, the district judge rightly concluded in granting summary judgment for Polaris on this branch of the case as well, has not been rebutted, especially when we consider that ConFold both is incorporated in Wisconsin and, more important, has its principal place of business there. Beloit Liquidating Trust v. Grade, 270 Wis.2d 356, 677 N.W.2d 298, 306-07 (2004).

The parties have hurled at us a bewildering array of terms on this branch of the case — “unjust enrichment,” of course, but also “restitution,” “trade secret,” “misappropriation,” “quasi-contract,” “quantum meruit,” and others. Let us try to make sense of them. (Proliferation of terms is a bane of the law.) “Unjust enrichment,” and its synonym “restitution,” has two referents, a remedial and a substantive. The remedial is to a situation in which a tort plaintiff asks not for the damages he has sustained but instead for the profit that the defendant obtained from the wrongful act. Hoagland ex rel. Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 385 F.3d 737, 744-45 (7th Cir.2004). If Polaris by copying (we are assuming) ConFold’s design saved money, that was a gain to which ConFold is entitled — provided the copying was a wrongful act.

In its substantive sense, unjust enrichment or restitution refers primarily to situations in which either the defendant has received something that of rights belongs to the plaintiff (for example, he received it by mistake — or he stole it), or the plaintiff *958had rendered a service to the defendant in circumstances in which one would reasonably expect to be paid (and the defendant refused to pay) though for a good reason there was no contract. An example of the second case is that of the physician who renders services to an unconscious person and later sends him a bill that the patient refuses to pay. In re Crisan’s Estate, 862 Mich. 569, 107 N.W.2d 907, 910-11 (1961); Cotnam v. Wisdom, 88 Ark. 601, 104 S.W. 164 (1907). In either case, restitution of the value of the benefit received (the mistaken payment in the first case, the normal fee for such a medical service in the second) enforces reasonable expectations.

The physician case, however, also parades under the name of “quasi-contract,” on which see, e.g., Goldstick v. ICM Realty, 788 F.2d 456, 467 (7th Cir.1986). For the court is constructing a contractual relationship in order to bring about the result for which the parties' probably would have contracted had contracting been feasible in the circumstances, which it was not. A quasi-contract must not be confused with a “contract implied in fact,” which is a contract “in which behavior takes the place of articulate acceptance.” Brines v. XTRA Corp., 304 F.3d 699, 703 (7th Cir.2002); see also Theuerkauf v. Sutton, 102 Wis.2d 176, 306 N.W.2d 651, 657-58 (1981); Schwartz v. Federated Realty Group, Inc., 148 Wis.2d 419, 436 N.W.2d 34, 36 (1988); E. Allan Farnsworth, Contracts § 3.10 (4th ed.2004). A “contract implied in fact” is thus a species of express contract, Schwartz v. Federated Realty Group, Inc., supra, 436 N.W.2d at 36 n. 2, rather than one constructed by the court.

Similar to quasi-contract is “quantum meruit,” which means suing for the value of a service rendered under circumstances in which payment was reasonably expected but the parties’ contract was unenforceable, for example because it did not comply with the statute of frauds. Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir.2005). In both the physician case (quasi-contract) and the statute of frauds case (quantum meruit), the plaintiff is entitled to the market value of his services rather than to the benefit that he conferred on the defendant, which might be much greater — for example if the plaintiff physician had saved the defendant’s life. The court tries to simulate a competitive market; and in such a market, price is based on the cost to the seller rather than on the subjective value to the buyer, which often is much greater. But the benefit received by the defendant is the proper measure of relief when he has appropriated something of value belonging to the plaintiff. On the distinction, see Ramsey v. Ellis, 168 Wis.2d 779, 484 N.W.2d 331, 333-34 (1992).

These interlocked, in some cases identical, theories of recovery have no application to this case. Firms constantly disseminate information without expectation of payment. It would be ridiculous to think that ConFold could simply have mailed its container design to every company in the world that uses containers and then gone around and sued all the companies that used the design. It is different if the design is patented or the recipient agrees not to use it, but then (since there is no patent claim here, although there is indeed such an animal as a design patent— as will turn out to be relevant to our analysis) we are back to the contract claim that the district judge properly rejected.

With the terms “trade secrets” and “misappropriation” we come at last to the issue that seems to divide Wisconsin and Minnesota but probably does not. Con-Fold believes mistakenly that a trade secret is a property right in the same sense in which a person has a property right in his mattress. A property right in the lat*959ter sense is a right good against the whole world, which a trade secret is not, because it is perfectly lawful to “steal” a firm’s trade secret by reverse engineering. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 155-56, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 179 (7th Cir.1991); American Can Co. v. Mansukhani, 742 F.2d 314, 334 n. 24 (7th Cir.1984) (Wisconsin law). In contrast, a patent right is good against the whole world. A copyright is not because independent discovery is a defense to a copyright — or a trade secret — claim; it is not a defense to a patent claim. But a copyright is a fuller property right than a trade secret, because copying is infringement; copying a trade secret, which is what reverse engineering does, is not.

A trade secret is really just a piece of information (such as a customer list, or a method of production, or a secret formula for a soft drink) that the holder tries to keep secret by executing confidentiality agreements with employees and others and by hiding the information from outsiders by means of fences, safes, encryption, and other means of concealment, so that the only way the secret can be unmasked is by a breach of contract or a tort. Wis. Stat. § 134.90(2)(c); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 721-23 (7th Cir.2003); Mangren Research & Development Corp. v. National Chemical Co., 87 F.3d 937, 942-43 (7th Cir.1996). ConFold admits that its designs were not trade secrets.

In general, if information is not a trade secret and is not protected by patent, copyright, or some other body of law that creates a broader intellectual property right than trade secrecy does, anyone is free to use the information without liability. ConFold argues, however, that the common law of Minnesota imposes liability for such use if the defendant got hold of the information improperly. The argument is difficult to understand; if the information is not secret and not protected by any of the laws that create property rights in information, it is in the public domain and freely usable without need to commit a tort or a breach of contract to obtain it.

The cases on which ConFold relies — the Rehabilitation Specialists, Tate, and Micro Display Systems cases cited earlier— stand for the distinct proposition that while section 7(a) of the Uniform Trade Secrets Act (in force in Wisconsin, Wis. Stat. § 134.90(6)(a)) preempts most nonUTSA remedies for misappropriation of a trade secret, the victim can sue separately for a tort committed in the course of the misappropriation, such as a trespass. See also Frantz v. Johnson, 116 Nev. 455, 999 P.2d 351, 358 (2000). The proposition is controversial. It sounds like an end run around preemption, since misappropriation of a trade secret normally is not actionable without either a tort or a breach of contract, and the UTSA already exempts (in section 7(b)(1)) claims of breach of contract from being preempted. Robert Unikel, “Bridging the ‘Trade Secret’ Gap: Protecting ‘Confidential Information’ Not Rising to the Level of Trade Secrets,” 29 Loy. U. Chi. L.J. 841, 887-88 (1998). At all events, with the contract issue resolved in Polaris’s favor, no contention that it obtained ConFold’s designs by tortious means, and no trade secrets, ConFold can get no traction from the Minnesota cases.

There is, however, another version of “misappropriation,” unrelated to trade secrets, which ironically has a footing in Wisconsin law, see Mercury Record Productions, Inc. v. Economic Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705, 709-11 (1974); see generally McKevitt v. Pallasch, 339 F.3d 530, 533-35 (7th Cir.2003), but has never been mentioned in a Minne*960sota case (and remember that ConFold is contending that Minnesota law governs its misappropriation claim), on which ConFold might have tried to rely, though with dim prospects of success.

International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), a decision no longer authoritative because it was based on the federal courts’ subsequently abandoned authority to formulate common law principles in suits arising under state law though litigated in federal court, has inspired the common law of a number of states, including, it seems, Wisconsin. The Associated Press and the International News Service competed in gathering news to be published in newspapers. Barred during much of World War I by British and French censors from sending war dispatches to the United States, INS would paraphrase AP’s war dispatches that had been published in east coast newspapers, and it was able to publish its paraphrases in west coast newspapers at the same hour because of the difference in time zones and in east coast newspapers only a few hours later. There was no copyright infringement, because INS was copying thé facts reported in AP’s dispatches rather than the dispatches themselves and anyway AP had not bothered to copyright its dispatches. And of course there was no trade secrecy. Nevertheless the Court held that AP was entitled to enjoin INS’s copying as a form of unfair competition.

In an effort to keep this concept of unfair competition or misappropriation— this bequest by the Supreme Court to a number of states — within reasonable limits, the Second Circuit, in an influential opinion interpreting New York law, stated the elements of the tort as follows: “(i) the plaintiff generates or collects information at some cost or expense; (ii) the value of the information is highly time-sensitive; (iii) the defendant’s use of the information constitutes free-riding on the plaintiffs costly efforts to generate or collect it; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; (v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality could be substantially threatened.” National Basketball Association v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir.1997) (citations omitted). ConFold has made no effort to establish these elements. Its misappropriation claim comes down to a claim of infringement of a design that it did not patent. Such a claim is preempted by patent law, as held by the Supreme Court in the Bonito case cited earlier. See also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231-32, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Com/pco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 239, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). The broader, INS-type claim probably is not preempted, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., supra, 489 U.S. at 154, 109 S.Ct. 971, but, as we have just noted, its elements have not been proved.

Affirmed.

Justice ERICKSON

delivered the Opinion of the Court.

Petitioner Dawn Leyden filed an action seeking a declaratory judgment in the District Court of Arapahoe County (district court) to impose an equitable lien on property which was the subject of a property settlement hearing in a divorce ease. By summary judgment, the district court held that an equitable lien existed on the property by virtue of a decree of dissolution previously entered by the District Court for the City and County of Denver (dissolution court), and ordered a foreclosure sale. Respondents Citicorp Industrial Bank (Citi-corp), Pamela Sue Evans, and Debra Lynn Evans (the Evanses) appealed. The court of appeals reversed, finding that the dissolution decree did not impose an equitable lien on the property. Leyden v. Citicorp Indus. Bank, 762 P.2d 689 (Colo.App.1988). We granted certiorari, and now reverse the judgment of the court of appeals and remand with directions.

I.

The facts are not in dispute. In 1980, petitioner and Tommy Howe were divorced. The decree of dissolution was entered on August 20, 1980, in the dissolution court. In a contested property settlement hearing, the dissolution court found that the marital residence, located at 41 South Eagle Circle, Aurora, Arapahoe County (the property), was held in joint tenancy by petitioner, Tommy Howe, and Tommy Howe’s mother, Lois Howe. The relevant portions of the dissolution decree are set out in footnote l.1 The dissolution court further found *8that petitioner was the fee simple owner of an undivided one-third interest in the property, which had an equity value of $30,000.

The dissolution court did not order a sale of the property however. To protect the interest of Lois Howe, the court ordered petitioner to quitclaim her one-third undivided interest in the property to Tommy Howe and his mother. Tommy Howe was ordered to contemporaneously execute a promissory note in the principal value of $10,000, with interest as provided in the order, and that was to become due upon the terms set forth in the decree.

The petitioner quitclaimed her one-third interest in the property to Tommy and Lois Howe, and Tommy Howe duly executed the promissory note. On November 18, 1980, the petitioner filed the dissolution decree (but apparently not the promissory note), in the records of Arapahoe County, where the property was located.

Subsequently, Citicorp extended a loan to Tommy Howe, his new wife Blanche, and Lois Howe (the Howes). In exchange, the Howes executed a promissory note in the principal amount of $19,600.77 to Citicorp, secured by a deed of trust on the property. The deed of trust was recorded on September 20, 1982.

Some time after the deed of trust was recorded, the Howes filed for bankruptcy, and the debt evidenced by the promissory note to petitioner was discharged.2 The Howes disclaimed any interest they had in the property, and Citicorp, after obtaining relief from the automatic stay in the bankruptcy court, foreclosed on the property and obtained a public trustee’s deed.

After the discharge in bankruptcy, the petitioner filed a complaint in the district court on February 7, 1984, asking for a declaratory judgment3 that the recorded dissolution decree created either a judicial or equitable lien on the property, praying for foreclosure of the lien, and requesting attorney fees as provided in the promissory note.4 On the same day, petitioner filed a lis pendens on the property in Arapahoe County. While the declaratory action was pending, Citicorp transferred the property by deed to the Evanses on March 28, 1985.

Both petitioner and respondents moved for summary judgment, claiming that there was no dispute as to any material fact, and that the district court was presented with a pure question of law. On April 13, 1986, the district court granted the petitioner’s motion for summary judgment, holding that the petitioner had an equitable lien on the property. In addition, the district court concluded that Citicorp and the Evanses were on notice that the petitioner was claiming a lien on the property when they obtained their interest in the property, so the respondents took the property subject to the lien. The district court also ordered a foreclosure sale of the property within thirty days, with the proceeds going to the petitioner, and any excess to the Evanses. The subsequent decree of foreclosure provided that Tommy Howe was in default under the terms of the promissory note in *9the amount of $24,084.51.5 This amount constituted the extent of the petitioner’s lien on the property, and was superior to the interests of all named defendants in the property. The foreclosure sale was stayed by the district court, however, in order that an appeal might be prosecuted.

Only Citicorp and the Evanses appealed. The court of appeals reversed the judgment of the district court, holding:

[T]he [dissolution] court did not impose any duty on husband to make payment from the proceeds of such sale, nor did the court expressly order that husband execute a deed of trust, or other security instrument, to secure payment of the note. In the absence of the imposition of either of these duties, or any other indication to the contrary, we conclude that the dissolution court did not intend to create any security interest in favor of wife. Consequently, under the circumstances here, the imposition of an equitable lien was error.

Leyden v. Citicorp Indus. Bank, 762 P.2d at 690. Under the facts of this case, we believe that the court of appeals construed petitioner’s right to an equitable lien too narrowly.

II.

The two questions that must be answered are, first, whether an equitable lien arose under the circumstances of this case and, second, if it did, whether the petitioner may enforce the lien against Citicorp and the Evanses.

In Colorado, an equitable lien may be created either by a written contract showing an intention to charge property with a debt or obligation, or “ ‘by a court of equity, out of general considerations of right and justice, as applied to the relations of the parties and the circumstances of their dealings.’ ” Valley State Bank v. Dean, 97 Colo. 151, 156, 47 P.2d 924, 927 (1935) (quoting from 1 Jones, Liens, section 27).

It has not been argued in this court that an equitable lien arose here because of a written contract. If a lien exists, therefore, it must be of the second type, that is, it must arise by virtue of the relations of the parties and the circumstances of this case. Id. The discretion of a court of equity in declaring that an equitable lien exists is not unbounded, however, since the purpose of the lien is to prevent unjust enrichment. See Caldwell v. Armstrong, 342 F.2d 485, 490 (10th Cir.1965); see also Restatement of Restitution § 161 (1937).6 As the court in Caldwell stated:

An equitable lien is a creature of equity, is based on the equitable doctrine of unjust enrichment, and is the right to have a fund or specific property applied to the payment of a particular debt. Such a lien may be declared by a court of equity out of general considerations of right and justice as applied to the relationship of the parties.

Caldwell, 342 F.2d at 490 (footnotes omitted). The law has long recognized that, under some circumstances, legal remedies are inadequate to protect the interests of the parties. See Page v. Clark, 197 Colo. 306, 315, 592 P.2d 792, 797-98 (1979); 4 S. Symons, Pomeroy’s Equity Jurisprudence *10§ 1234 (5th ed. 1941).7 An equitable lien that is imposed by a court of equity to prevent unjust enrichment is a special form of constructive trust.8

The court of appeals apparently believed that the sole factor to consider in a case where an equitable lien is alleged to arise out of a judicial decree is whether the judge issuing the judgment or decree consciously intended that a lien be created. See Leyden v. Citicorp Indus. Bank, 762 P.2d at 690. Although the intention of the dissolution court is relevant,9 it is not the only consideration.

If an equitable lien were not imposed here, Tommy Howe would be unjustly enriched. He would have obtained the petitioner’s one-third share in the marital home (valued at $10,000 in 1980 by the dissolution court) without any cost to him. After the divorce, Tommy received the benefits of a loan secured by encumbering the property, but he has paid the petitioner nothing, and has secured a discharge in bankruptcy of the debt evidenced by the promissory note to petitioner. In addition, the promissory note executed by Tommy Howe obviously dealt with or was related to specific real property, 4 S. Symons, Pomeroy’s Equity Jurisprudence, supra, § 1234 at 695. The execution of the promissory note was tied to the petitioner’s relinquishment of her interest in the property, and repayment of the note was conditioned in part on events involving disposition of the property. Under these circumstances, the district court did not err in concluding that an equitable lien should be *11imposed on the property.10 Our conclusion is consistent with that reached by other courts in similar circumstances.

In Hart v. Hart (In re Hart), 50 B.R. 956 (Bankr.D.Nev.1985), a divorce decree ordered the wife to pay her former husband $15,000 upon remarriage, or upon sale of the marital home, which was retained by the wife. The wife remarried, but that marriage was annulled, and the former husband demanded the $15,000. The state court ordered the wife to pay the $15,000 within sixty days, and the judgment was recorded. The wife filed for bankruptcy, and her former husband commenced adversary proceedings in the bankruptcy court seeking a declaration, inter alia, that the debt owed by the wife was secured by a non-avoidable lien. The bankruptcy court agreed, and relying on Caldwell v. Armstrong, held that the divorce decree created an equitable lien on the marital property:

In the present case, the divorce decree ordered the defendant to pay the plaintiff $15,000 within sixty days after the defendant remarried or upon the sale of the home. The intent of the parties was to attach some definite obligation to the family home, or in other words, to secure the plaintiffs claim to his share of the equity in the former family home. This Court, acting as a court of equity, concludes that the plaintiff has an equitable lien securing his equity in the defendant’s property, and against any proceeds that might come from the sale of that property.

Id. at 960. Similarly, in Bailey v. Bailey (In re Bailey), 20 B.R. 906 (Bankr.W.D.Wis.1982), a state divorce judgment provided that the marital property be divided equally. The former husband was awarded one of the houses owned by the parties, and the wife got the other. The divorce judgment also ordered the husband to pay the wife $23,100, while she was to quitclaim her interest in the house awarded the husband. The husband filed for bankruptcy, and sought to discharge the $23,100 debt. The wife objected on the grounds that the debt was non-dischargeable. The bankruptcy court initially concluded that the debt was in the nature of a property division, and did not constitute alimony, support, or maintenance. It was thus dis-chargeable if unsecured.

The bankruptcy court concluded, however, that an equitable lien was created by the divorce decree. Citing Caldwell v. Armstrong, the court recognized that the primary purpose for the imposition of an equitable lien was to prevent unjust enrichment. In addition, the two requirements for an equitable lien — a debt, duty, or obligation owing from one person to another, and a res to which the obligation could be fastened — were present. Thus, even though the divorce judgment did not tie the payment of the debt to the property, the bankruptcy court, sitting as a court of equity, could utilize an equitable lien in structuring an appropriate remedy. 20 B.R. at 911. See also In re Webb, 160 F.Supp. 544, 547-49 (S.D.Ind.1958) (discussing creation of equitable lien pursuant to property settlement agreement).

We believe that the present circumstances are at least as compelling as in Hart or Bailey, and thus the district court *12did not err in declaring an equitable lien.11

III.

Even though we decide that the petitioner is entitled to an equitable lien on the property in order to prevent unjust enrichment, the issue remains whether the lien may be enforced against Citicorp and the Evanses, since there was no evidence that they would be unjustly enriched. An equitable lien is “good as against all persons who acquired an interest with knowledge or notice of plaintiffs [equitable] lien, but it would not be good as against one who acquired an interest without such knowledge or notice.” Valley State Bank v. Dean, 97 Colo. at 157, 47 P.2d at 927. This view accords with that of the Restatement of Restitution:

d. Enforcement against transferee. If property which is subject to an equitable lien is transferred to a third person who has notice of the equitable lien or who does not give value, the equitable lien can be enforced against the property in the hands of the third person (see § 168). On the other hand, an equitable lien, like other equitable interests, is cut off if the property is transferred to a bona fide purchaser (see § 172).

Restatement of Restitution § 161 comment d (1937).12 Thus, if a transferee who pays value for the property is on notice of the equitable lien, the transferee takes the property subject to the lien. “Notice,” in the context of an equitable lien or constructive trust, is notice of the facts giving rise to the lien or constructive trust, and “a person has notice of facts giving rise to a constructive trust if he knows the facts or should know them.” Id. at § 174 (emphasis added). In particular,

[a] person has notice of facts giving rise to a constructive trust [or equitable lien] not only when he knows them, but also when he should know them; that is when he knows facts which would lead a reasonably intelligent and diligent person to inquire whether there are circumstances which would give rise to a constructive trust, and if such inquiry when pursued with reasonable intelligence and diligence would give him knowledge or reason to know of such circumstances.

*13Id. at § 174 comment a (emphasis added). We agree with the district court that both Citicorp and the Evanses were on at least constructive notice of the facts and circumstances giving rise to the equitable lien when they obtained their interest in the property. When Citicorp extended the loan to the Howes, the decree of dissolution was recorded and in the chain of title of the property. Citicorp has not argued that it lacked actual knowledge of the contents of the decree.

Similarly, when the property was transferred to the Evanses, the decree was in the chain of title. In addition, when the Evanses took the property, there was a lis pendens on file that would lead a reasonable person to inquire regarding its source. The reason for the filing of the lis pendens was this very lawsuit, in which the petitioner was claiming an equitable lien.

Contrary to the contention of the respondents, recognition of an equitable lien under these circumstances would not defeat the purposes of the recording acts. The concept of constructive notice is explicitly recognized in section 38-35-109(1); 16A C.R.S. (1982 & 1988 Supp.). See also Page v. Fees-Krey, Inc., 617 P.2d 1188, 1193-94 (Colo.1980). Accordingly, we conclude that the district court properly held that the petitioner’s equitable lien was enforceable against both Citicorp and the Evanses.

Finally, the district court did not err in ordering a foreclosure sale. Although that issue was not specifically addressed in this court, our examination of the record reveals that the only argument advanced by the respondents in the court of appeals that the foreclosure sale was improper hinged entirely on the existence of the equitable lien itself. Since we conclude that imposing an equitable lien was not error, the order of foreclosure was not error. The same reasoning, however, does not apply to the issue of attorney fees, which was neither briefed nor argued in this court. The court of appeals did not reach the issue because it found that there was no equitable lien on the property, and the state of the record does not allow us to fairly resolve that issue.

IV.

Therefore, we reverse the court of appeals insofar as it held that the district court erred in declaring an equitable lien on the property. We return this case to the court of appeals with instructions to affirm the district court’s order imposing an equitable lien and a foreclosure sale, and to consider the issue of attorney fees. Once the attorney fee issue is resolved, the court of appeals is directed to remand the case to the district court for further proceedings consistent with this opinion.

Justice SCOTT

delivered the Opinion of the Court.

In January 1990, respondent, Hydrosphere Resource Consultants, Inc. (Hydrosphere), filed this action against petitioner, Earthlnfo, Inc. (Earthlnfo), seeking to rescind the parties’ software development contracts due to Earthlnfo’s failure to make royalty payments. The trial court determined that Earthlnfo had breached its contracts with Hydrosphere, ordered the contracts rescinded, and ordered that Earthlnfo repay to Hydrosphere all the net profits it realized as a result of its breach. The court of appeals affirmed the trial court.

We granted certiorari to determine (1) whether the court of appeals erred when it concluded that the proper measure of restitution for partial rescission of a contract was disgorgement of the petitioner’s profits; and (2) whether the district court erred by not giving credit to the petitioner for that portion of the profits that are attributable to the petitioner’s effort and investment. We conclude that net profits realized by Earthlnfo as a result of its breach which were not attributable to its own efforts should be returned to Hydrosphere as unjust enrichment. Accordingly, we affirm in part, reverse in part, and return this ease to the court of appeals with directions that it remand this matter to the trial court for further proceedings in accordance with this opinion.

I

Between 1986 and 1988, Hydrosphere entered into several contracts with US West, Inc. (US West), a Delaware corporation, to develop a number of products that employ CD-ROM technology1 (the “Contracts”).

*116The products were designed to exploit hydrological and meteorological information collected by government agencies and to make that information available to the general public through Hydrosphere. Under the Contracts, Hydrosphere was to develop the CD-ROM units and create the software that enables end-users to access the otherwise public information on line from the CD-ROM units.

The Contracts vested all rights of ownership, copyrights, and patents in the products to US West. Under the terms of the Contracts, Hydrosphere had an ongoing obligation to provide technical support to end-users of the products, and US West was to create user manuals, and package and market the products. US West was also to pay Hydrosphere a fixed hourly development fee as well as royalties, calculated as a percent age of net sales, for “inventive product ideas.” Payments under the Contracts were made on a quarterly basis.

On February 10, 1989, US West assigned its interest in the Contracts to Earthlnfo in a leveraged buy-out deal2 in which Earthlnfo agreed to pay US West $60,432.3 Earthlnfo also entered into a separate agreement with Hydrosphere in which it agreed to honor US West’s obligations under the Contracts, including the continued payment of royalties on the products already developed by Hydrosphere. Earthlnfo fulfilled its contractual obligations through June 80, 1990. Hydrosphere then claimed that sales of a new derivative product were subject to royalty payments; Earthlnfo claimed that the Contracts did not address derivative products, and therefore objected to increasing its royalty obligation. On October 30, 1990, when the third-quarter royalty payments were due, Earthlnfo informed Hydrosphere that it was withholding these payments and any further royalty payments pending clarification of the basis for the royalty payments. Earthlnfo continued to make payments of the fixed hourly development fees. A total of $19,000 in fixed fees was paid to Hydrosphere after June 30, 1990. After strained negotiations, Hydrosphere notified Earthlnfo by letter on December 12,1990, that it was rescinding the Contracts.

On January 11, 1991, Hydrosphere filed a breach of contract action against Earthlnfo in the Boulder County District Court. After a four-day trial in March of 1992, the trial court ruled that Earthlnfo did not owe royalties on sales of the derivative product, but the court determined that Earthlnfo had breached its Contracts with Hydrosphere when it unilaterally suspended royalty payments on the other products. In a subsequent hearing, both parties sought rescission of the Contracts and restitution as a remedy. The trial court found “the breach was substantial” and that “due to the nature of the contracts between the parties and the depth of their disputes, damages would be inadequate.” The trial court determined that the appropriate remedy would be rescission. In an order and judgment issued two days later it set June 30, 1990, the date through which Earthlnfo had paid royalties, as the date of rescission.4

As restitution between the parties, the court ordered Earthlnfo to return to Hydrosphere all tangible property developed under the Contracts. In addition, the court found that “since rescission is an equitable remedy the court has discretion in determining the appropriate relief for the parties,” and ordered Earthlnfo to return to Hydrosphere all property, promotional materials and proprietary information related to the Hydroda-ta products. In addition, the court held *117Earthlnfo responsible in equity “for the repayment to Hydrosphere of the net profits realized by Earthlnfo” from June 30, 1990, until the date of the order, totaling $265,-204.91. The court found Hydrosphere “in equity responsible for the repayment to Earthlnfo of amounts paid by Earthlnfo” in acquiring the Hydrodata product line from US West, totalling $60,432, and in fixed hourly development fees paid by Earthlnfo after June 30,1990, in the amount of $19,000. The costs incurred by Earthlnfo were deducted from the net profits, resulting in a judgment in favor of Hydrosphere in the amount of $185,772.91.

Earthlnfo appealed the judgment of the trial court, seeking a return of the tangible property that it had delivered to Hydrosphere pursuant to the trial court’s order.5 Earthlnfo also alleged that the trial court abused its discretion in awarding Hydrosphere all of the net profits Earthlnfo had realized since June 30, 1990.

The court of appeals affirmed the judgment of the trial court in an unpublished opinion. The majority held that it was within the trial court’s discretion to consider the net profit realized by a party in setting the amount of restitution. Judge Rothenberg, in her dissent, stated that disgorgement of profits in this case is not supported by Colorado case law, and that the case should be reversed and remanded on this issue alone.

We granted certiorari review of the appropriateness of disgorgement of profits as a measure of restitution, and the calculation or apportionment of those profits by the trial court.

II

This case presents a question of first impression for this court: whether a party that breaches a contract can be required to disgorge to the non-breaching party any benefits received as a result of the breach. Because this issue has remained largely unexplored, the rules of application are neither settled nor uniform. The difficulty in resolving this issue stems from a subtle conflict between the law of restitution and the law of contracts. This conflict is well articulated in what has become a leading article on the disgorgement principle:

It is a principle of the law of restitution that one should not gain by one’s own wrong; it is a principle of the law of contracts that damages for breach should be based on the injured party’s lost expectation. In many cases, the principles are mutually consistent. If, on breach, the injured party’s lost expectation equals or exceeds the gain by the party in breach, then damages based on expectation strip the party in breach of all gain, and make the injured party whole. But if the injured party’s lost expectation is less than the gain realized by the party in breach, then damages based on expectation do not strip the party in breach of all gain. This situation brings the two principles into conflict.

E. Allan Farnsworth, Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract, 94 Yale L.J. 1339, 1341 (1985) [hereinafter “Farnsworth”] (citations omitted). According to Farns-worth, courts have been reluctant to award profits to a nonbreaching party in a breach of contract action, thus allowing the party in breach to keep part of the gain, since in effect “a ‘mere’ breach of contract is not a ‘wrong.’” Farnsworth at 1341. Many others, however, have suggested that if the gain realized by the party in breach exceeds the injured party’s loss, the measure of damages should strip the party in breach of all gain.6 *118We adopt neither approach as a general rule, and hold instead that whether profits are awarded to a nonbreaching party shall be determined within the discretion of the trial court on a case by case basis.

A

Rescission of a contract may be granted if the facts show a substantial breach, that the injury caused by the breach is irreparable, and that damages are inadequate, difficult or impossible to assess. See Wall v. Foster Petroleum Corp., 791 P.2d 1148, 1150 (Colo.App.1989), cert. denied, No. 89SC682 (Colo. May 14, 1990); Ralston Oil and Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985). A contract can also be rescinded by the “mutual consent” or “actions” of the parties. See Rice v. Hilty, 38 Colo.App. 338, 340, 559 P.2d 725, 726 (1976).

Here, the trial court found not only that Earthlnfo’s breach was substantial, but that “due to the nature of the contracts between the parties and the depth of their disputes, damages would be inadequate.” The trial court also found that although the Contracts “contemplate an ongoing relationship” between the parties, “[i]t is unrealistic to assume that damages could be computed and awarded and that the parties could then resume that relationship in a productive manner.” The trial court found further that both parties sought rescission of the Contracts. Thus, the trial court concluded that rescission was necessary.7 Since evidence in the record supports the trial court’s findings, we conclude that rescission of the Contracts was warranted.

Rescission of a contract normally is accompanied by restitution on both sides. 1 Dan B. Dobbs, Law of Remedies § 4.3(6) at 614 (2d ed. 1993) [hereinafter “Dobbs”]. The contract is “being unmade, so restoration of benefits received under the contract seems to follow.” Id. Restitution measures the remedy by the defendant’s gain and seeks to force disgorgement of that gain in order “to prevent the defendant’s unjust enrichment.”8 Id. § 4.1(1) at 552, 557. Restitution, which seeks to prevent unjust enrichment of the defendant, differs in principle from damages, which measure the remedy by the plaintiffs loss and seek to provide compensation for that loss. Id. at 555, 557. As a consequence, “in some cases the defendant gains more than the plaintiff loses, so that the two remedies may differ in practice as well as in principle.”9 Id. at 555.

A party seeking to rescind a contract must return the opposite party to the status quo ante, or the position in which he or she was prior to entering into the contract. Ralston Oil, 719 P.2d at 339; Smith v. Huber, 666 P.2d 1122, 1124 (Colo.App.1983); Rice, 38 Colo.App. at 340, 559 P.2d at 727. The rule of returning the parties to the sta*119tus quo ante is equitable and it requires the use of practicality in the readjustment of the parties’ rights. Huber, 666 P.2d at 1124. Since rescission is an equitable remedy, it is within the trial court’s sound discretion to determine the method for accomplishing a return to the status quo ante based upon the facts as determined by the trier of fact. Id. at 1124-25; see also Ralston Oil, 719 P.2d at 339. All uncertainties as to the amount of benefit are to be resolved against the party committing the material breach. W.H. Woolley & Co. v. Bear Creek Manors, 735 P.2d 910 (Colo.App.1986).

The main options for measurement of the benefit conferred on the breaching party are these:

(1) the increased assets in the hands of the defendant from the receipt of property;

(2) the market value of services or intangibles provided to the defendant, without regard to whether the defendant’s assets were actually increased; that is, the amount which it would cost to obtain similar services, whether those services prove to be useful or not;

(3) the use value of any benefits received, as measured by (i) market indicators such as rental value or interest or (ii) actual gains to the defendant from using the benefits, such as the gains identified in item (5) below;

(4) the gains realized by the defendant upon sale or transfer of an asset received from the plaintiff;

(5) collateral or secondary profits earned by the defendant by use of an asset received from the plaintiff, or, what is much the same thing, the savings effected by the use of the asset.

Dobbs § 4.1(4) at 566-67 (footnote omitted).10 It is the fifth option, disgorgement of profits, which is principally at issue in this case.

No easy formulas exist for determining when restitution of profits realized by a party ⅛ permissible. Instead, the court must resort to general considerations of fairness, taking into account the nature of the defendant’s wrong, the relative extent of his or her contribution, and the feasibility of separating this from the contribution traceable to the plaintiffs interest. 1 George E. Palmer, The Law of Restitution § 2.12 at 161 (1978) [hereinafter “Palmer”]. Thus, the more culpable the defendant’s behavior, and the more direct the connection between the profits and the wrongdoing, the more likely that the plaintiff can recover all defendant’s profits. See, e.g., Douglas Layeoek, The Scope and Significance of Restitution, 67 Tex.L.Rev. 1277, 1289 (1989). The trial court must ultimately decide whether the whole circumstances of a case point to the conclusion that the defendant’s retention of any profit is unjust.

Generally, the mere breach of a contract will not make the defendant accountable for benefits thereby obtained, whether through dealings with a third person or otherwise. As noted by Dobbs § 4.1(4) at 566-67:

[ t]o require a defendant to give up profits may operate with particular severity because at least some of the profits would almost always be attributable to the defendant’s efforts or investment. So the profit recovery as a measure of restitution is extraordinary. In general, the defendant who is not a serious wrongdoer is held only to make restitution measured by actual gains in assets or in gains of services or intangibles which he [or she] in fact sought in the relevant transaction.

Id. (footnote omitted). If, however, the defendant’s wrongdoing is intentional or substantial, or there are no other means of measuring the wrongdoer’s enrichment, recovery of profits may be granted. See generally Palmer § 2.12 at 164-65.

B

The trial court determined that Earthlnfo’s breach of the Contracts was substantial, damages were difficult to assess, and the parties mutually consented to rescission. *120Thus, the trial court required Earthlnfo to disgorge all the profits it realized as a result of the breach. The court returned to Earth-lnfo the consideration it agreed to pay for the Hydrodata product line and also allowed it to retain the profits it earned when it was maMng the royalty payments. The court held Earthlnfo responsible, however, for the repayment to Hydrosphere of the net profits it realized from June 30, 1990 until the date of the order, determining that to be the most equitable treatment of the parties given the nature of the dispute. We agree that Earth-lnfo must be required to disgorge the profits it accrued as a result of its breach since its breach was conscious and substantial.

The trial court found that the Contracts between Earthlnfo and Hydrosphere did not require Earthlnfo to pay royalties on sales of the derivative product. Earthlnfo was still required, however, to pay royalties on all other products under the written Contracts. The trial court determined that Earthlnfo’s repudiation of its long-standing royalty obligations to Hydrosphere was a substantial breach of the Hydrodata Contracts. The trial court’s factual determinations are supported by the evidence and should not be disturbed on appeal absent a clear showing of abuse of discretion. See La Plata Medical Center Assoc., Ltd. v. United Bank of Durango, 857 P.2d 410 (Colo.1993). The trial court’s order represents a permissible exercise of its discretion.

Since the record supports the trial court’s findings that Earthlnfo consciously and substantially breached its Contracts with Hydrosphere, damages were difficult to assess, and the parties mutually agreed to rescission, retention of profits by Earthlnfo would be an unjust enrichment. Accordingly, we find that the extraordinary remedy of restitution and disgorgement of profits is justified.

Ill

The remaining issue then is the determination of the profits to be returned to Hydrosphere. The petitioner contends that the trial court erred in failing to apportion the net profits in a way that reflected the relative contributions to those profits by the parties. We agree.

“Courts have recognized that some apportionment must be made between those profits attributable to the plaintiffs property and those earned by the defendant’s efforts and investment, limiting the plaintiff to the profits fairly attributable to his share.” Dobbs § 4.5(3) at 642-43. “Even the wilful wrongdoer should not be made to give up that which is his [or her] own; the principle is disgorgement, not plunder.” Id. at 642. The defendant’s personal efforts in contributing to profits must be taken into account, but are often difficult to measure. For example, if the defendant uses the plaintiffs machine in producing goods, which it packages, distributes and sells to retail customers, it may increase its profits, but we are not so sure that the increase has much if any connection with the plaintiffs machine. We can be sure, however, that the defendant’s profits relate in part to the defendant’s own investments, efforts, or enterprising attitude. Id. at 647.

Dobbs’ example of profit-making complexity is similar to the profit-making in the case at hand. Earthlnfo used Hydrosphere’s software programming in five items produced, packaged, distributed, and sold by Earthlnfo. Earthlnfo’s marketing, packaging and enhancement of the products presumably contributed to the earning of the net profits; that contribution should be accounted for and withheld from the disgorgement of those profits by Hydrosphere.

No single rule governing the burden of proving apportionment is adequate for all cases or all facets of a single ease. See generally Palmer § 2.13 at 166-75; Dobbs § 4.5(3) at 641-44. Profit claims can be calculated first by identifying and deducting legitimate business expenses from gross income. Dobbs § 4.5(3) at 641. The defendant usually has the best access to this information and may properly be required to prove such expenses. See id. Second, gross income of the defendant is produced at least in part “by investment, enterprise, and management skill of the defendant,” and the defendant should receive credit for its own efforts and investments. Id. The court must determine which part of the profit results from the defendant’s own independent efforts and which part results from the bene*121fits provided by the plaintiff. The court must seek to determine a fair apportionment that will result in a reasonable approximation or informed estimate of the relative contributions of the two parties. See generally Palmer § 2.13 at 171-73; Dobbs § 4.5(3) at 643. The allocation of the burden of establishing such approximation, and degree of specificity of proof required, may be affected by such factors as the seriousness of the defendant’s wrongdoing and the extent to which the plaintiffs contribution was at risk in the profit making enterprise. See Palmer § 2.13 at 171-73; Dobbs § 4.5(3) at 643-44. Where the relative contributions of the two parties are inseparable or untraceable, there should be no recovery of profits by the plaintiff unless the defendant is a very serious wrongdoer. See id. at 644. In the present case, considering the nature and extent of the breach as well as the other relevant factors, we hold that it is the burden of the plaintiff to establish facts sufficient to permit the trial court to determine the relative contributions of the parties so that profits can be fairly apportioned.

The record in this case indicates that Earthlnfo materially contributed effort and investment to the Hydrodata line of products. Earthlnfo’s contribution included user manuals, packaging, trademarks, promotional materials, and lists of persons or entities licensed to use the products. Thus, Earthln-fo should be credited for the amount of its expenses in developing and marketing the Hydrodata product line.

The trial court made no findings with respect to the relative contributions of each party and whether they are inseparable. Thus, this case should be remanded to the trial court for further proceedings so that the court’s order that Earthlnfo disgorge its profits is limited to those profits attributable to Hydrosphere. Accordingly, we affirm in part, reverse in part, and return this case to the court of appeals with directions that it remand the case to the trial court for recalculation of wrongful profits attributable to Hydrosphere and entry of a new order of restitution.

OPINION OF THE COURT

Chief Judge Cooke.

Plaintiff claims that he and defendant entered an agreement whereby defendant would lease a building owned by *503plaintiff, who was to complete its renovation and make certain modifications on an expedited basis. Defendant, however, never signed any contract and never occupied the building. Plaintiff commenced this litigation, and defendant unsuccessfully moved to dismiss for failure to state a cause of action. On appeal, the Appellate Division reversed, with two Justices dissenting in part. For the reasons that follow, we now modify.

Plaintiff pleaded three causes of action in his complaint. The first was to enforce an oral lease for a term longer than one year. This is clearly barred by the Statute of Frauds (General Obligations Law, § 5-703, subd 2). The third cause of action is premised on the theory that the parties contracted by exchanging promises that plaintiff would perform certain work in his building and defendant would enter into a lease for a term longer than one year. This is nothing more than a contract to enter into a lease; it is also subject to the Statute of Frauds (see Geraci v Jenrette, 41 NY2d 660, 664). Hence, the third cause of action was properly dismissed.

Plaintiff’s second cause of action, however, is not barred by the Statute of Frauds. It merely seeks to recover for the value of the work performed by plaintiff in reliance on statements by and at the request of defendant. This is not an attempt to enforce an oral lease or an oral agreement to enter a lease, but is in disaffirmance of the void contract and so may be maintained (see Baldwin v Palmer, 10 NY 232, 235). That defendant did not benefit from plaintiff’s efforts does not require dismissal; plaintiff may recover for those efforts that were to his detriment and that thereby placed him in a worse position (see Kearns v Andree, 107 Conn 181; 5 Corbin, Contracts, § 1107; 12 Williston, Contracts [3d ed], § 1480). “The contract being void and incapable of enforcement in a court of law, the party * * * rendering the services in pursuance thereof, may treat it as a nullity, and recover * * * the value of the services” (Erben v Lorillard, 19 NY 299, 302; accord Day v New York Cent. R. R. Co., 51 NY 583, 590).

The dissent’s primary argument is that the second cause of action is equivalent to the third, and so is also barred by the Statute of Frauds. It is true that plaintiff attempts to *504take the contract outside the statute’s scope and render it enforceable by arguing that the work done was unequivocally referable to the oral agreement. This should not operate to prevent recovery under a theory of quasi contract as a contract implied by law, which “is not a contract at all but an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended” (Calamari and Perillo, Contracts [2d ed], § 1-12, p 19). Obviously, the party who seeks both to enforce the contract that is unenforceable by virtue of the Statute of Frauds and to recover under a contract implied in law will present contradictory characterizations. This, however, is proper in our courts where pleading alternative theories of relief is accepted. Moreover, the existence of any real promise is unnecessary; plaintiff’s attempt to make his acts directly referable to the unenforceable contract simply is irrelevant.

The authorities all recognize that a promisee should be able to recover in the present situation. “[I]f the improvements made by the plaintiff are on land that is not owned by the defendant and in no respect add to his wealth, the plaintiff will not be given judgment for restitution of their value, even though he may have made such improvements in reliance upon the contract that the defendant has broken. For such expenditures as these in reliance on a contract, the plaintiff can get judgment only in the form of damages for consequential injury” (5 Corbin, Contracts, p 578 [n omitted]). Thus, plaintiff may recover for those expenditures he made in reliance on defendant’s representations (see id., §§ 998, 1011) and that he otherwise would not have made. The Restatement provides that an injured party who has not conferred a benefit may not obtain restitution, but he or she may “have an action for damages, including one for recovery based on * * * reliance” (Restatement, Contracts 2d, § 370, Comment a). “[T]he injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed” (Restatement, Contracts 2d, § 349). The Restate*505ment recognizes an action such as is involved here (see Restatement, Contracts 2d, §§ 139, 349, Comment b).

The dissent relies on Bradkin v Leverton (26 NY2d 192) and Miller v Schloss (218 NY 400) for the proposition that plaintiff can recover only if there is an actual benefit to the defendant. Those cases do not state that there can be no recovery for work performed in the absence of any real benefit to defendant. As stated by Professor Williston (12 Williston, Contracts [3d ed], pp 282-284, 286-287 [nn omitted]):

“Again, even though the defendant’s liability is imposed by law irrespective of the agreement of the parties, and may, therefore, be called quasi contractual, where the defendant is a wrongdoer the plaintiff may well be preferred, and if a complete restoration of the status quo or its equivalent is impossible the plaintiff should at least be replaced in as good a position as he originally was in, although the defendant is thereby compelled to pay more than the amount which the plaintiff’s performance has benefited him.

***

“That is, the law should impose on the wrongdoing defendant a duty to restore the plaintiff’s former status, not merely to surrender any enrichment or benefit that he may unjustly hold or have received; although if the market value or, in the absence of a market value, the benefit to the defendant of what has been furnished exceeds the cost or value to the plaintiff, there is no reason why recovery of this excess should not be allowed.

“These different possible situations, as has been said, have often been confused with one another, because the form of action in each of them was identical at common law — general assumpsit on a quantum meruit or quantum valebat count; and this tended to induce courts and others to inquire what is the rule of damages under such counts — a question not susceptible of a single answer.”

A lesson in this area can be taken from Professors Calamari and Perillo: “The basic aim of restitution is to place the plaintiff in the same economic position as he enjoyed prior to contracting. Thus, unless specific restitu*506tion is obtained in Equity, the plaintiff’s recovery is for the reasonable value of services rendered, goods delivered, or property conveyed less the reasonable value of any counter-performance received by him. The plaintiff recovers the reasonable value of his performance whether or not the defendant in any economic sense benefitted from the performance. The quasi-contractual concept of benefit continues to be recognized by the rule that the defendant must have received the plaintiff’s performance; acts merely preparatory to performance will not justify an action for restitution. ‘Receipt,’ however, is a legal concept rather than a description of physical fact. If what the plaintiff has done is part of the agreed exchange, it is deemed to be ‘received’ by the defendant.” (Calamari and Perillo, Contracts [2d ed], § 15-4, p 574 [nn omitted]; see, also, id., § 19-44; Perillo, Restitution in a Contractual Context, 73 Col L Rev 1208, 1219-1225).

We should not be distracted by the manner in which a theory of recovery is titled. On careful consideration, it becomes clear that the commentators do not disagree in result, but only in nomenclature. Whether denominated “acting in reliance” or “restitution,” all concur that a promisee who partially performs (e.g., by doing work in a building or at an accelerated pace) at a promisor’s request should be allowed to recover the fair and reasonable value of the performance rendered, regardless of the enforceability of the original agreement.

Accordingly, the order of the Appellate Division should be modified, with costs to appellant, by reinstating plaintiff’s second cause of action and, as so modified, affirmed.

Jasen, J.

(dissenting). Plaintiff’s second cause of action alleges that “[p]laintiff, in reliance on statements made [by] the defendant and at its request, performed work, provided labor and material to the defendant” and that “[defendant has failed to compensate the plaintiff for monies and other expenses incurred by the plaintiff in preparing the property at 49 East Avenue to the defendants’ needs”, causing damage to the defendant in the amount of $400,000.

The majority hold that this cause of action is not barred by the Statute of Frauds as it “merely seeks to recover for *507the value of the work performed by plaintiff in reliance on statements by and at the request of defendant” and does not “attempt to enforce an oral lease or an oral agreement to enter [into] a lease.” Inasmuch as the record before us on this motion for summary judgment clearly demonstrates that this cause of action is barred by the Statute of Frauds, I must dissent.

Plaintiff alleges that “in reliance on statements made [by] the defendant”, he performed certain work and provided labor and material to the defendant. In his affidavit in support of this claim, he sets forth the substance of those statements — “Timing is critical and we would like to have you go ahead with the work. Don’t worry about the lease, it will be signed and the work should not wait for the actual signing of the lease” and “We need two floors for immediate occupancy on June 1. We will pay rent for the entire building as soon as we move in and then you can proceed with the other floors after the first two floors are ready.” Plaintiff’s own affidavits, therefore, conclusively establish that the work he performed was done in reliance on defendant’s oral agreement to enter into a lease and not in reliance on defendant’s promise, express or implied, to compensate plaintiff monetarily for the work performed separate and apart from entering into a leasehold. Nowhere, in any of the exhibits and affidavits offered by plaintiff in opposition to defendant’s motion for summary judgment does plaintiff even allege that defendant agreed to pay for plaintiff’s renovation work or that plaintiff expected any such compensation. Indeed, in summing up the contents of his own evidentiary support, plaintiff states that “[c]learly our performance of the obligation to renovate the Neisner Building is unequivocally referable to the oral agreement entered into on March 16, 1981 [whereby defendant allegedly agreed to lease the building for two years]”. It is abundantly clear, therefore, that plaintiff, in asserting a right to recover damages under his second cause of action, based solely upon defendant’s failure to honor its oral promise to enter into a two-year lease, is merely engaging in a blatant attempt to circumvent the proscriptions .of the Statute of Frauds. The only claim plaintiff has alleged and supported with evidentiary facts *508is that he performed work in reliance on defendant’s alleged promise to enter into a two-year lease of the Neisner Building and suffered damages when defendant subsequently refused to rent the premises. However his claim is worded, it should be beyond dispute that plaintiff is seeking damages for defendant’s breach of an oral contract to enter into a two-year lease. Since this type of contract is barred by the Statute of Frauds, plaintiff should not be allowed to do indirectly what he cannot do directly.. (See Dung v Parker, 52 NY 494, 497; Roberts v Champion Int., 52 AD2d 773, mot for lv to app dsmd 40 NY2d 918.)

It is noteworthy that the amount of damages sought in plaintiff’s second cause of action is identical to that sought in his third cause of action, indicating that the same theory of recovery is asserted in both. Since as the majority concedes, the third cause of action alleges nothing more than a contract to enter into a lease and must, therefore, be dismissed, there is no reason why the second cause of action should not be treated similarly. Furthermore, the amount of damages sought, $400,000, happens to be the annual rental price allegedly agreed upon by the defendant, which further demonstrates that plaintiff is seeking relief solely on the theory that defendant wrongfully refused to lease the premises. It is also noteworthy that, prior to the issue being raised by the dissent at the Appellate Division, plaintiff did not argue in his brief or orally before that court that he expected monetary compensation from the defendant or that the defendant expressly or impliedly agreed to pay same. Indeed, it seems clear that the plaintiff himself never intended his complaint to be construed as the majority does today. From all of this, there should be little doubt that plaintiff’s second cause of action was intended to and does merely seek damages for defendant’s alleged breach of an oral contract to enter into a two-year lease and cannot, therefore, be maintained.

Assuming, arguendo, that the majority is correct in holding that plaintiff’s second cause of action alleges his entitlement to monetary compensation and that his affidavits support his allegations, the plaintiff, would, nevertheless, not be entitled to relief.

*509The majority fails to specify the theory of recovery upon which it bases its conclusion that “plaintiff may recover for those efforts that were to his detriment and that thereby placed him in a worse position”. Insofar as this conclusion is based upon quasi contract, it is incorrect for the well-established rule in this State is that in order for a plaintiff to recover under such a cause of action, he must demonstrate 'that the defendant was unjustly enriched by his efforts. The rule has been clearly set forth by this court and consistently followed: “ ‘[a] quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. In truth it is not a contract or promise at all. It is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it, and which ex aequo et bono belongs to another.’ ” (Bradkin v Leverton, 26 NY2d 192, 197, quoting Miller v Schloss, 218 NY 400, 407.) (See, also, Shapira v United Med. Servs., 15 NY2d 200, 216; Pink v Title Guar. & Trust Co., 274 NY 167, 173; D’Angelo v Hastings Oldsmobile, 89 AD2d 785, 786, affd 59 NY2d 773; Matter of James v State of New York, 90 AD3d 342, 346-347; 50 NY Jur, Restitution and Implied Contracts, § 74, p 339; cf. Smith v Kirkpatrick, 305 NY 66, 72, 73.) Since, as the majority correctly points out, defendant did not benefit from plaintiff’s efforts, no recovery under quasi contract may be had. (See 5 Corbin, Contracts, § 1107, p 578.)

The “lesson” provided by Professors Calamari and Perillo, cited by the majority, is inapposite to the case before us because section 15-4 of their text deals exclusively with actions based on breach while plaintiff does not allege in his second cause of action that defendant breached any agreement. Additionally, I note that insofar as this statement would allow recovery by the plaintiff under a theory of restitution, even though the defendant has not been benefited by any of plaintiff’s efforts, such is not the law in New York. (See Bradkin v Leverton, 26 NY2d 192, 197, supra.) The majority itself concedes this point in stating, *510“an injured party who has not conferred a benefit may not obtain restitution” (at p 504). Moreover, assuming arguendo the accuracy of the legal principle stated by Calamari and Perillo, this principle does not accord relief to the plaintiff in the instant appeal. As the two professors correctly note, “the defendant must have received the plaintiff’s performance; acts merely preparatory to performance will not justify an action for restitution.” First, defendant received nothing from the plaintiff, as the majority accurately points out. Second, plaintiff’s acts in renovating his building were “merely preparatory to performance” of the alleged oral contract whereby plaintiff and defendant agreed to enter into a two-year lease. Thus, even if section 15-4 were applicable, plaintiff would not be entitled to the relief which the majority is offering.

I also fail to see how sections 998 and 1011 of Corbin’s treatise and sections 349 and 370 of the Restatement of Contracts, Second, support the majority’s position. Corbin’s discussion of reliance damages in sections 998 and 1011 (like Calamari and Perillo’s) is concerned solely with a remedy available to a plaintiff injured by a defendant who has breached a contract. Since there was no such contract entered into by the parties here, and accordingly no breach thereof, those sections of Corbin’s text do not even address the issue involved here.

Similarly, the Restatement lends no support to the majority’s view. While it is true that section 370 would allow a party to maintain “an action for damages, including one for recovery based on * * * reliance”, a reading of the entire section, including its cite to section 349 as the sole authority for this proposition, makes clear that such an action is based strictly on a theory of promissory estoppel, a theory which, as is discussed more fully below, has never been asserted by the parties and which this court has heretofore declined to adopt.

The majority also mistakenly relies on a quote from section 349 of the Restatement of Contracts, Second — “[T]he injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the *511injured party would have suffered had the contract been performed” (emphasis supplied) (at p 504). This passage, by its very terms, deals solely with remedies available where a party has breached an existing contract. Plaintiff, however, does not allege in his second cause of action the existence of any contract. Nor does he allege that defendant committed any breach. In the majority’s view, plaintiff’s second cause of action is not based upon breach of contract, but, rather, “is in disaffirmance of the void contract”. (At p 503.) Thus, section 349 of the Restatement does not address the situation presented on this appeal and, accordingly, provides no support for the majority’s position.

It appears that the majority, in holding that plaintiff can recover the value of his efforts expended in reliance on defendant’s alleged statements, is recognizing a cause of action sounding in promissory estoppel. This is implicit in its reference to the Restatement of Contracts, Second, section 139 and section 349, Comment b, as support for its conclusion that “[t]he Restatement recognizes an action such as is involved here”. Section 139 is quite simply one of the estoppel sections of the Restatement. (See Restatement, Contracts 2d, § 139, Comment a.) Moreover, Comment b to section 349 sets forth the instances in which damages may be based on plaintiff’s reliance interest. Those instances are spelled out in sections 87 (option contract), 89 (modification of executory contract), 90 (promissory estoppel) and 139 (promissory estoppel). Since this appeal does not involve option or executory contracts, the ineluctable conclusion to be drawn is that the majority has recognized, sub silentio, a cause of action in promissory estoppel.

While the doctrine of promissory estoppel has been recognized and applied in certain cases, to do so here, where the issue has not been pleaded or addressed in the parties’ affidavits and has neither been argued nor briefed, is ill-advised. Moreover, it is difficult to understand why the majority, in discussing plaintiff’s reliance damages, ignores the fact made abundantly clear by plaintiff’s own affidavits and his conduct during the early stages of his litigation, that plaintiff has merely alleged, in all three causes of action, that he is entitled to monetary damages *512from defendant because he relied on defendant’s alleged promise to enter into a two-year lease — a promise unenforceable under the Statute of Frauds. This is all the more puzzling because we are not presented here with an inexperienced or unsophisticated plaintiff who is unable to protect his own financial interests. To the contrary, Max Farash is a “prominent and successful [real estate] developer” (see Farash v Smith, 59 NY2d 952, 955) who owns thousands of residential housing units in Monroe County and at least eight commercial buildings in downtown Rochester. In light of this, it is incredible that the majority would construe plaintiff’s complaint and affidavits in a way that even the plaintiff never intended and then adopt a novel legal doctrine solely for the purpose of extending equitable relief to the plaintiff where it would previously have been unavailable. Surely a sophisticated businessman such as Max Farash knew that he could have easily insured that defendant would pay for the extensive renovation work plaintiff performed on his own building merely by obtaining defendant’s promise to that effect. Plaintiff’s failure to obtain such a promise leads inevitably to the conclusion that defendant never intended to pay for such renovation and, thus, never agreed to do so. Nevertheless, the majority unnecessarily provides plaintiff with an opportunity to go before a jury and request that the defendant, who received nothing from the plaintiff, be ordered to pay for the improvements made on plaintiff’s own building. Nothing in logic or existing law supports such a result.

In the absence of either a contract requiring defendant to pay for plaintiff’s renovation or some evidence that defendant was unjustly enriched, thus allowing plaintiff to recover under a cause of action sounding in quasi contract, defendant should not be held potentially liable to plaintiff for such renovation costs. Accordingly, I would affirm the order of the Appellate Division.

Judges Jones, Wachtler and Meyer concur with Chief Judge Cooke; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Simons concurs.

Order modified, with costs to appellant, in accordance with the opinion herein and, as so modified, affirmed.

Per Curiam.

In No. 78-1871, Prank W. Snepp III seeks review of a judgment enforcing an agreement that he signed when he accepted employment with the Central Intelligence Agency (CIA). He also contends that punitive damages are an inappropriate remedy for the breach of his promise to submit all writings about the Agency for prepublication review. In No. 79-265, the United States conditionally cross petitions from a judgment refusing to find that profits attributable to Snepp’s breach .are impressed with a constructive trust. We grant the petitions for certiorari in order to correct the judgment from which both parties seek relief.

I

Based on his experiences as a CIA agent, Snepp published a book about certain CIA activities in South Vietnam. Snepp published the account without submitting it to the Agency for prepublication review. As an express condition of his employment with the CIA in 1968, however, Snepp had *508executed an agreement promising that he would “not . . . publish . . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the Agency.” App. to Pet. for Cert, in No. 78-1871, p. 59a. The promise was an integral part of Snepp’s concurrent undertaking “not to disclose any classified information relating to the Agency without proper authorization.” Id., at 58a.1 Thus, Snepp had pledged not to divulge classified information and not to publish any information without prepublication clearance. The Government brought this suit to enforce Snepp’s agreement. It sought a declaration that Snepp had breached the contract, an injunction requiring Snepp to submit future writings for prepublication review, and an order imposing a constructive trust for the Government’s benefit on all profits that Snepp might earn from publishing the book in violation of his fiduciary obligations to the Agency.2

The District Court found that Snepp had “willfully, deliberately and surreptitiously breached his position of trust with the CIA and the [1968] secrecy agreement” by publishing his book without submitting it for prepublication review. 456 F. Supp. 176, 179 (ED Ya. 1978). The court also found that Snepp deliberately misled CIA officials into believing that he would submit the book for prepublication clearance. Finally, the court determined as a fact that publication of the book had “caused the United States irreparable harm and loss.” *509Id., at 180. The District Court therefore enjoined future breaches of Snepp’s agreement and imposed a constructive trust on Snepp’s profits.

The Court of Appeals accepted the findings of the District Court and agreed that Snepp had breached a valid contract.3 It specifically affirmed the finding that Snepp’s failure to submit his manuscript for prepublication review had inflicted “irreparable harm” on intelligence activities vital to our national security. 595 F. 2d 926, 935 (CA4 1979). Thus, the court upheld the injunction against future violations of Snepp’s prepublication obligation. The court, however, concluded that the record did not support imposition of a constructive trust. The conclusion rested on the court’s percep*510tion that Snepp had a First Amendment right to publish unclassified information and the Government’s concession— for the purposes of this litigation — that Snepp’s book divulged no classified intelligence. Id., at 935-936.4 In other words, the court thought that Snepp’s fiduciary obligation extended only to preserving the confidentiality of classified material. It therefore limited recovery to nominal damages and to the possibility of punitive damages if the Government — in a jury trial — could prove tortious conduct.

Judge Hoffman, sitting by designation, dissented from the refusal to find a constructive trust. The 1968 agreement, he wrote, “was no ordinary contract; it gave life to a fiduciary relationship and invested in Snepp the trust of the CIA.” Id., at 938. Prepublication clearance was part of Snepp’s undertaking to protect confidences associated with his trust. Punitive damages, Judge Hoffman argued, were both a speculative and inappropriate remedy for Snepp’s breach. We agree with Judge Hoffman that Snepp breached a fiduciary obligation and that the proceeds of his breach are impressed with a constructive trust.

II

Snepp’s employment with the CIA involved an extremely high degree of trust. In the opening sentence of the agreement that he signed, Snepp explicitly recognized that he was entering a trust relationship.5 The trust agreement specifi*511cally imposed the obligation not to publish any information relating to the Agency without submitting the information for clearance. Snepp stipulated at trial that — after undertaking this obligation — he had been “assigned to various positions of trust” and that he had been granted “frequent access to classified information, including information regarding intelligence sources and methods.” 456 F. Supp., at 178.6 Snepp published his book about CIA activities on the basis of this background and exposure. He deliberately and surreptitiously violated his obligation to submit all material for prepublication review. Thus, he exposed the classified information with which he had been entrusted to the risk of disclosure.

Whether Snepp violated his trust does not depend upon whether his book actually contained classified information. The Government does not deny — as a general principle— Snepp’s right to publish unclassified information. Nor does it contend — at this stage of the litigation — that Snepp’s book contains classified material. The Government simply claims that, in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources. Neither of the Government’s concessions undercuts its claim that Snepp’s failure to submit to prepublication review was a breach of his trust.

Both the District Court and the Court of Appeals found that a former intelligence agent’s publication of unreviewed material relating to intelligence activities can be detrimental *512to vital national interests even if the published information is unclassified. When a former agent relies on his own judgment about what information is detrimental, he may reveal information that the CIA — with its broader understanding of what may expose classified information and confidential sources — could have identified as harmful. In addition to receiving intelligence from domestically based or controlled sources, the CIA obtains information from the intelligence services of friendly nations7 and from agents operating in foreign countries. The continued availability of these foreign sources depends upon the CIA’s ability to guarantee the security of information that might compromise them and even endanger the personal safety of foreign agents.

Undisputed evidence in this case shows that a CIA agent’s violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA’s ability to perform its statutory duties. Admiral Turner, Director of the CIA, testified without contradiction that Snepp’s book and others like it have seriously impaired the effectiveness of American intelligence operations. He said:

“Over the last six to nine months, we have had a number of sources discontinue work with us. We have had more sources tell us that they are very nervous about continuing work with us. We have had very strong complaints from a number of foreign intelligence services with whom we conduct liaison, who have questioned whether they should continue exchanging information with us, for fear it will not remain secret. I cannot esti*513mate to you how many potential sources or liaison arrangements have never germinated because people were unwilling to enter into business with us.” 456 F. Supp., at 179-180.8

In view of this and other evidence in the record, both the District Court and the Court of Appeals recognized that Snepp’s breach of his explicit obligation to submit his material— classified or not — for prepublication clearance has irreparably harmed the United States Government. 595 F. 2d, at 935; 456 F. Supp., at 180.9

*514Ill

The decision of the Court of Appeals denies the Government the most appropriate remedy for Snepp’s acknowledged wrong. Indeed, as a practical matter, the decision may well leave the Government with no reliable deterrent against similar breaches of security. No one disputes that the actual damages attributable to a publication such as Snepp’s generally are unquantifiable. Nominal damages are a hollow alternative, certain to deter no one. The punitive damages recoverable after a jury trial are speculative and unusual. Even if recovered, they may bear no relation to either the Government’s irreparable loss or Snepp’s unjust gain.

The Government could not pursue the only remedy that the Court of Appeals left it10 without losing the benefit of the bargain it seeks to enforce. Proof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect. The trial of such a suit, before a jury if the defendant so elects, would subject the CIA and its *515officials to probing discovery into the Agency’s highly confidential affairs. Rarely would the Government run this risk. In a letter introduced at Snepp’s trial, former CIA Director Colby noted the analogous problem in criminal cases. Existing law, he stated, “requires the revelation in open court of confirming or additional information of such a nature that the potential damage to the national security precludes prosecution.” App. to Pet. for Cert, in No. 78-1871, p. 68a. When the Government cannot secure its remedy without unacceptable risks, it has no remedy at all.

A constructive trust, on the other hand, protects both the Government and the former agent from unwarranted risks. This remedy is the natural and customary consequence of a breach of trust.11 It deals fairly with both parties by conforming relief to the dimensions of the wrong. If the agent secures prepublication clearance, he can publish with no fear of liability. If the agent publishes unreviewed material in violation of his fiduciary and contractual obligation, the trust remedy simply requires him to disgorge the benefits of his faithlessness. Since the remedy is swift and sure, it is tailored to deter those who would place sensitive information at risk. And since the remedy reaches only funds attributable to the *516breach, it cannot saddle the former agent with exemplary damages out of all proportion to his gain. The decision of the Court of Appeals would deprive the Government of this equitable and effective means of protecting intelligence that may contribute to national security. We therefore reverse the judgment of the Court of Appeals insofar as it refused to impose a constructive trust on Snepp’s profits, and we remand the cases to the Court of Appeals for reinstatement of the full judgment of the District Court.

So ordered.

Mr. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

In 1968, Frank W. Snepp signed an employment agreement with the CIA in which he agreed to submit to the Agency any information he intended to publish about it for prepubli-cation review.1 The purpose of such an agreement, as the Fourth Circuit held, is not to give the CIA the power to censor its employees’ critical speech, but rather to ensure that classified, nonpublic information is not disclosed without the Agency’s permission. 595 F. 2d 926, 932 (1979); see also United States v. Marchetti, 466 F. 2d 1309, 1317 (CA4 1972), cert. denied, 409 U. S. 1063.

In this case Snepp admittedly breached his duty to submit the manuscript of his book, Decent Interval, to the CIA for prepublication review. However, the Government has conceded that the book contains no classified, nonpublic material.2 Thus, by definition, the interest in confidentiality *517that Snepp’s contract was designed to protect has not been compromised. Nevertheless, the Court today grants the Government unprecedented and drastic relief in the form of a constructive trust over the profits derived by Snepp from the sale of the book. Because that remedy is not authorized by any applicable law and because it is most inappropriate for the Court to dispose of this novel issue summarily on the Government’s conditional cross-petition for certiorari, I respectfully dissent.

I

The rule of law the Court announces today is not supported by statute, by the contract, or by the common law. Although Congress has enacted a number of criminal statutes punishing the unauthorized dissemination of certain types of classified information,3 it has not seen fit to authorize the constructive trust remedy the Court creates today. Nor does either of the contracts Snepp signed with the Agency provide for any such remedy in the event of a breach.4 The Court’s per curiam *518opinion seems to suggest that its result is supported by a blend of the law of trusts and the law of contracts.5 But neither of these branches of the common law supports the imposition of a constructive trust under the circumstances of this case.

Plainly this is not a typical trust situation in which a set-tlor has conveyed legal title to certain assets to a trustee for the use and benefit of designated beneficiaries. Rather, it is an employment relationship in which the employee possesses fiduciary obligations arising out of his duty of loyalty to his employer. One of those obligations, long recognized by the common law even in the absence of a written employment agreement, is the duty to protect confidential or “classified” information. If Snepp had breached that obligation, the common law would support the implication of a constructive trust upon the benefits derived from his misuse of confidential information.6

But Snepp did not breach his duty to protect confidential information. Rather, he breached a contractual duty, imposed in aid of the basic duty to maintain confidentiality, to *519obtain prepublication clearance. In order to justify the imposition of a constructive trust, the majority attempts to equate this contractual duty with Snepp’s duty not to disclose, labeling them both as “fiduciary.” I find nothing in the common law to support such an approach.

Employment agreements often contain covenants designed to ensure in various ways that an employee fully complies with his duty not to disclose or misuse confidential information. One of the most common is a covenant not to compete. Contrary to the majority’s approach in this case, the courts have not construed such covenants broadly simply because they support a basic fiduciary duty; nor have they granted sweeping remedies to enforce them. On the contrary, because such covenants are agreements in restraint of an individual’s freedom of trade, they are enforceable only if they can survive scrutiny under the “rule of reason.” That rule, originally laid down in the seminal case of Mitchel v. Reynolds, 1 P. Wms. 181, 24 Eng. Rep. 347 (1711), requires that the covenant be reasonably necessary to protect a legitimate interest of the employer (such as an interest in confidentiality), that the employer’s interest not be outweighed by the public interest,7 and that the covenant not be of any longer duration or wider geographical scope than necessary to protect the employer’s interest.8

*520The Court has not persuaded me that a rule of reason analysis should not be applied to Snepp’s covenant to submit to prepublication review. Like an ordinary employer, the CIA has a vital interest in protecting certain types of information; at the same time, the CIA employee has a countervailing interest in preserving a wide range of work opportunities (including work as an author) and in protecting his First Amendment rights. The public interest lies in a proper accommodation that will preserve the intelligence mission of the Agency while not abridging the free flow of unclassified information. When the Government seeks to enforce a harsh restriction on the employee’s freedom,9 despite its admission that the interest the agreement was designed to protect — the confidentiality of classified information — has not been compromised, an equity court might well be persuaded that the case is not one in which the covenant should be enforced.10

*521But even assuming that Snepp’s covenant to submit to pre-publication review should be enforced, the constructive trust imposed by the Court is not an appropriate remedy. If an employee has used his employer’s confidential information for his own personal profit, a constructive trust over those profits is obviously an appropriate remedy because the profits are the direct result of the breach. But Snepp admittedly did not use confidential information in his book; nor were the profits from his book in any sense a product of his failure to submit the book for prepublication review. For, even if Snepp had submitted the book to the Agency for prepublication review, the Government’s censorship authority would surely have been limited to the excision of classified material. In this case, then, it would have been obliged to clear the book for publication in precisely the same form as it now stands.11 Thus, Snepp has not gained any profits as a result of his breach; the Government, rather than Snepp, will be unjustly enriched if he is required to disgorge profits attributable entirely to his own legitimate activity.

Despite the fact that Snepp has not caused the Government the type of harm that would ordinarily be remedied by *522the imposition of a constructive trust, the Court attempts to justify a constructive trust remedy on the ground that the Government has suffered some harm. The Court states that publication of "unreviewed material” by a former CIA agent “can be detrimental to vital national interests even if the published information is unclassified.” Ante, at 511-512. It then seems to suggest that the injury in such cases stems from the Agency’s inability to catch “harmful” but unclassified information before it is published. I do not believe, however, that the Agency has any authority to censor its employees’ publication of unclassified information on the basis of its opinion that publication may be “detrimental to vital national interests” or otherwise “identified as harmful.” Ibid. The CIA never attempted to assert such power over Snepp in either of the contracts he signed; rather, the Agency itself limited its censorship power to preventing the disclosure of “classified” information. Moreover, even if such a wide-ranging prior restraint would be good national security policy, I would have great difficulty reconciling it with the demands of the First Amendment.

The Court also relies to some extent on the Government’s theory at trial that Snepp caused it harm by flouting his pre-publication review obligation and thus making it appear that the CIA was powerless to prevent its agents from publishing any information they chose to publish, whether classified or not. The Government theorized that this appearance of weakness would discourage foreign governments from cooperating with the CIA because of a fear that their secrets might also be compromised. In support of its position that Snepp’s book had in fact had such an impact, the Government introduced testimony by the Director of the CIA, Admiral Stans-field Turner, stating that Snepp’s book and others like it had jeopardized the CIA’s relationship with foreign intelligence services by making them unsure of the Agency’s ability to maintain confidentiality. Admiral Turner’s truncated testimony does not explain, however, whether these unidentified *523“other'5 books actually contained classified information.12 If so, it is difficult to believe that the publication of a book like Snepp’s, which does not reveal classified information, has significantly weakened the Agency’s position. Nor does it explain whether the unidentified foreign agencies who have stopped cooperating with the CIA have done so because of a legitimate fear that secrets will be revealed or because they merely disagree with our Government’s classification policies.13

In any event, to the extent that the Government seeks to punish Snepp for the generalized harm he has caused by failing to submit to prepublication review and to deter others from following in his footsteps, punitive damages is, as the Court of Appeals held, clearly the preferable remedy “since a constructive trust depends on the concept of unjust enrichment rather than deterrence and punishment. See D. Dobbs, Law of Remedies § 3.9 at 205 and § 4.3 at 246 (1973).” 595 F. 2d, at 937.14

*524II

The Court’s decision to dispose of this case summarily on the Government’s conditional cross-petition for certiorari is just as unprecedented as its disposition of the merits.

Snepp filed a petition for certiorari challenging the Fourth Circuit’s decision insofar as it affirmed the entry of an injunction requiring him to submit all future-manuscripts for pre-publication review and remanded for a determination of whether punitive damages would be appropriate for his failure to submit Decent Interval to the Agency prior to its publication. The Government filed a brief in opposition as well as a cross-petition for certiorari; the Government specifically stated, however, that it was cross petitioning only to bring the entire case before the Court in the event that the Court should decide to grant Snepp’s petition. The Government explained that “[bjecause the contract remedy provided by the court of appeals appears to be sufficient in this case to protect the Agency’s interest, the government has not independently sought review in this Court.” In its concluding paragraph the Government stated: “If this Court grants [Snepp’s] . . . petition for a writ of certiorari in No. 78-1871, it should also grant this cross-petition. If the petition in No. 78-1871 is denied, this petition should also be denied.” Pet. for Cert, in No. 79-265, p. 5.

Given the Government’s position, it would be highly inappropriate, and perhaps even beyond this Court’s jurisdiction, to grant the Government’s petition while denying Snepp’s. Yet that is in essence what has been done.15 The majority obviously does not believe that Snepp’s claims merit this Court’s consideration, for they are summarily dismissed in a *525footnote. Ante, at 509, n. 3. It is clear that Snepp’s petition would not have been granted on its own merits.

The Court’s opinion is a good demonstration of why this Court should not reach out to decide a question not necessarily presented to it, as it has done in this case. Despite the fact that the Government has specifically stated that the punitive damages remedy is “sufficient” to protect its interests, the Court forges ahead and summarily rejects that remedy on the grounds that (a) it is too speculative and thus would not provide the Government with a “reliable deterrent against similar breaches of security,” ante, at 514, and (b) it might require the Government to reveal confidential information in court, the Government might forgo damages- rather than make such disclosures, and the Government might thus be left with “no remedy at all,” ante, at 515. It seems to me that the Court is foreclosed from relying upon either ground by the Government’s acquiescence in the punitive damages remedy. Moreover, the second rationale16 is entirely speculative and, in this case at least, almost certainly wrong. The Court states that.

“[p]roof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect.” Ante, at 514.

Yet under th,e Court of Appeals’ opinion the Government would be entitled to punitive damages simply by proving that Snepp deceived it into believing that he was going, to comply with his duty to submit the manuscript for prepubli-cation review and that the Government relied on these misrepresentations to its detriment. I fail to see how such a showing would require the Government to reveal any confidential information or to expose itself to “probing discovery into the Agency’s highly confidential affairs.” Ante, at 515.

*526Ill

The uninhibited character of today’s exercise in lawmaking is highlighted by the Court’s disregard of two venerable principles that favor a more conservative approach to this case.

First, for centuries the English-speaking judiciary refused to grant equitable relief unless the plaintiff could show that his remedy at law was inadequate. Without waiting for an opportunity to appraise the adequacy of the punitive damages remedy in this case, the Court has jumped to the conclusion that equitable relief is necessary.

Second, and of greater importance, the Court seems unaware of the fact that its drastic new remedy has been fashioned to enforce a species of prior restraint on a citizen’s right to criticize his government.17 Inherent in this prior restraint is the risk that the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. The character of the covenant as a prior restraint on free speech surely imposes an especially heavy burden on the censor to justify the remedy it seeks. It would take more than the Court has written to persuade me that that burden has been met.

I respectfully dissent.

OPINION OF THE COURT

GARTH, Circuit Judge:

This is an appeal from a grant of summary judgment by the district court in favor *991of Hershey Foods Corporation and against Ralph Chapek, Inc. We affirm.

I.

On August 13, 1981, Ralph Chapek, Inc. (Chapek), a marketing consulting firm, sent an unsolicited, seven-page licensing proposal to Hershey Foods Corporation (Hershey), in which Chapek proposed to assist Hershey in assessing the feasibility of marketing Hershey’s chocolate milk and ice cream. App. at 59-66. The proposal outlined various studies to be undertaken by Chapek, as well as marketing plans and research. Id. at 62. The August 13, 1981 licensing proposal suggested two options by which Chapek would be compensated. “Option One” involved individual research studies to be conducted by Chapek. It also provided that Chapek would receive 15% of the first five years royalties and fees received by Hershey Foods Corporation “for the licensing of the Hershey Chocolate brand for use in the manufacture and sale of Hershey chocolate milk and ice cream, during the first five years.”1 App. at 65. Under “Option Two” Chapek would become the licensee of the Hershey Chocolate trademark for use in the manufacture, sale and store-door delivery of Hershey chocolate milk and ice cream. Under this option, Chapek would negotiate and pay to Hershey a royalty for all dairy products sold with the Hershey chocolate brand name to Chapek for sublicensing to local dairies. Id.

On October 27, 1981, Ralph Chapek, the president of Chapek; met in New York with Hershey’s Director of New Products, Anthony Pingitore, to discuss Chapek’s proposal. Only the two individuals were present. Chapek contends that at that initial meeting, Pingitore orally agreed, on Hershey’s behalf, to “Option One” and committed Hershey to the 15% commission compensation arrangement as it pertained to Hershey’s chocolate milk. In return, Chapek claims that it agreed to undertake the three specific research studies proposed in the August 13th proposal, i.e., the fresh chocolate milk and ice cream industry study, the brand impression and attitude and usage study, and a marketing research study with respect to six focus groups. App. at 65.

Three days later, on October 30, 1981, Chapek wrote to Pingitore and, referring to their October 27th meeting, set forth in its letter, an agreement into which Chapek and Hershey had entered. The agreement essentially provided that Chapek would perform a chocolate milk study for Hershey and Hershey would compensate Chapek in the sum of $17,500. The instant dispute between Chapek and Hershey focuses on this agreement: Chapek claiming that this, the October 30th agreement, is only a partially integrated agreement; Hershey claiming that it is the complete integrated agreement of the parties.

In addition to the August 13,1981 licensing proposal for chocolate milk and ice cream which Chapek sent to Hershey, and the October 30, 1981 agreement involving the dairy industry and chocolate milk industry study for which Hershey paid $17,-500, the record reveals other proposals and agreements. Chapek submitted six additional proposals to Hershey, each of which involved different research projects. Chapek was directed to proceed with three of these additional research projects. As to each, a separate agreement was negotiated. The other six written proposals made by Chapek were:

*992Consumer marketing re* search, chocolate milk (1/20/82) (App. at 81) Not accepted by Hershey

“50 Metro” proposal (10/7/82) (App. at 96-100) (referred to as the Licensing strategy proposal or “major market” study) Accepted by Hershey and for which Hershey paid $50,000

In depth market analysis (1/31/83) (App. at 114) (“broad scope study” portion) Accepted by Hershey and for which Hershey paid $23,825

Baked sweet goods proposal (4/20/83) (App. at 122-24) (“broad scope study” portion) Accepted by Hershey and for which Hershey paid $20,125 (expenses indud* ed)

Frozen novelties (1/31/83) (App. at 140-42) Not accepted by Hershey

Chocolate chip cookies (4/20/83) (App. at 143-57) Not accepted by Hershey

On August 22, 1983, Chapek wrote to Hershey claiming a commission calculated on “fifteen percent of the first five years’ royalties and fees received by Hershey for the licensing of the Hershey Chocolate brand for use in the manufacturing and sale of Hershey Chocolate Milk to the dairy industry.” Supp.App., Plaintiff’s Ex. 20. Hershey rejected Chapek's claim and ultimately brought this action in the Middle District of Pennsylvania for declaratory relief on April 27, 1984. Hershey sought a declaration that it was not obligated to Chapek, under any legal or equitable theory, for commissions calculated on chocolate milk licensing royalties and fees. Chapek counterclaimed for breach of contract; for an award in quantum meruit; for damages for an implied breach of the covenant of good faith and fair dealing; and for damages for “false promise”.

On April 5, 1985, Hershey moved for summary judgment. Hershey argued that the breach of contract claim should be dismissed because Chapek’s proof of an oral agreement would be barred by the parol evidence rule. It asked for dismissal of the good faith and fair dealing claim as not recognized by Pennsylvania law. It sought dismissal of the quantum meruit and fraudulent misrepresentation claims because the material facts of the case would not support such causes of action. Hershey sought a judgment declaring Hershey free from any express or implied claims of Chapek.

The magistrate held that the October 30, 1981 letter written by Chapek as a result of the October 27th meeting and accepted by Hershey, integrated and incorporated every agreement between the parties as of that date. The magistrate further held that Chapek’s good faith claim could not be sustained under Pennsylvania law, which was deemed to be applicable, and that the “false promise” count failed because there was no evidence that there was fraudulent intent on the part of Hershey and because it would negate Pennsylvania’s parol evidence rule. As to the quantum meruit count, the magistrate ruled in favor of Hershey with two exceptions. Ultimately, those “exceptions” were removed from the case by a stipulation effected between Hershey and Chapek.2 See App. at 445.

The district court approved the magistrate’s report and recommendation, but modified the magistrate’s holding, stating that “giving Chapek the benefit of all favorable inferences that might reasonably be drawn from the evidence, there is a reasonable basis for this court to conclude that the October 30, 1981 written contract integrates and incorporates every agreement between the parties as of that date.” App. at 408. In its own opinion, the district court agreed with Hershey that the oral agreement of October 27, 1981, which Chapek claimed was a part of its agreement with Hershey, was proscribed by the parol evidence rule because it was offered by Chapek to vary, contradict, or otherwise attack the terms of the October 30, 1981 letter.

On September 9, 1986, the district court entered a judgment declaring that “Hershey Foods Corporation has no liability to Defendant Ralph Chapek Inc., and the Counterclaims of Defendant Ralph Chapek Inc. are dismissed.” App. at 451.

*993Chapek appealed, but on appeal abandoned the implied covenant of good faith issue and the issue of “false promise.”

II.

Chapek argues on appeal that, under Pennsylvania law,3 the letter of October 30, 1981 did not constitute a fully integrated contract and that at the meeting with Pingitore on October 27, 1981, Pingitore orally agreed to “Option One” which was set forth in the August 13,1981 licensing proposal. By this argument, Chapek claims that the 15% commission term of “Option One” became a part of its contract with Hershey.

Hershey responds that the October 30, 1981 “Dear Tony” letter is a complete and fully integrated document which cannot be varied by parol evidence. Because that letter does not include any provision for a 15% commission, Hershey argues that it cannot be bound to any commission arrangement. The October 30, 1981 letter reads in full as follows:

Dear Tony:

Per our meeting in New York City on October 27th, concerning Chapek conducting an industry study for the dairy category, this letter will serve as an agreement between Ralph Chapek, Inc. (hereafter Chapek) and Hershey Foods Corporation (hereafter Hershey). The details of the agreement are as follows:

1. Chapek will provide to Hershey a comprehensive study of the dairy industry in general and the chocolate milk market specifically for Hershey to evaluate a possible Hershey entry in the chocolate milk category.

2. The study and timing will be based on the attached research outline, with reasonable modification and additions by Hershey.

3. Chapek agrees to confidentiality of all research, findings and recommendations concerning research work conducted by Chapek for Hershey.

4. Hershey agrees to compensate Chapek:

a. Dairy Industry Study at $17,500 with 50% at project inception (see attached invoice statement) and 50% at project completion, with completion date estimated for February 1, 1982 or sooner.

b. Reimbursement of travel expenses for meetings at Hershey and other related meetings for trade interviews. Total reimbursement shall not exceed 15% of industry study cost or a maximum expense of $2,625.

After your review of the attached research outline, I suggest you relate to Chapek any additions or deletions Hershey may wish. We can then discuss the same over the telephone.

I might also suggest that we meet in New York at Doyle Dane again during the week of November 16th to finalize the research outline.

Thank you again for the opportunity to be of service to Hershey.

•Sincerely,

Ralph Chapek President

App. at 68-69, 342. Our review of an order granting summary judgment such as the district court’s order in this case, is plenary. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976).

A.

Hershey argues as a threshold matter, that the parol evidence rule prevents Chapek from attempting to vary the terms of the October 30, 1981 letter by seeking to introduce evidence of a prior, oral agreement, which evidence would vary the terms of Chapek’s compensation. Chapek, however, asserts that the oral agreement reached at the October 27, 1981 meeting is not offered to contradict or vary any of the terms of the October 30th letter, but rather is offered to supplement its terms. In support of that position, Chapek refers us to *994Potoczny v. Dydek, 192 Pa.Super. 550, 162 A.2d 70 (1960), which states:

It is well settled that an oral agreement is not superceded or. invalidated by a subsequent or contemporaneous integration, if the oral agreement is not inconsistent with the integrated contract, and is such an agreement as might be naturally made separately by the parties situated as were the parties to the written contract. (Citations omitted)

However, Chapek’s reliance on Potoczny, supra, is misplaced. In Potoczny, A and B had orally agreed to purchase land from C; A to eventually own one-third and B to eventually own two-thirds of the property. It was orally agreed that the deed would initially be in B’s name and that A and B would subsequently divide the land in the proportions mentioned. After receiving the deed for the entire parcel in his name, B refused to convey one-third to A. After A brought suit, the court ruled that B held one-third of the property in a resulting trust for A, who had paid a portion of the purchase price. In discussing the issue raised as to parol evidence, the court found the writing between B and C “... was not intended to, and did not properly, state the full agreement between [A and B]. Consequently, it was permissible to receive parol testimony____” Potoczny, 192 Pa.Super. at 558, 162 A.2d at 74. Indeed, neither A nor B sought to vary the terms of the deed given by C to B by parol evidence concerning the one-third/two-thirds division of the property.

Thus, in Potoczny, supra, the oral agreement (between A and B) was found to be the type of agreement “... as might naturally be made separately by parties situated as were the parties to the written agreement.” Id. at 558,162 A.2d 70. That situation is significantly different from the situation found here where Chapek seeks to alter the terms of its written agreement with Hershey by adding still another term of compensation allegedly agreed upon pri- or to the parties’ October 30th written agreement. See discussion infra at 998.

Moreover, the parol evidence rule under Pennsylvania law provides that when parties to a contract have reduced their agreement to writing, that writing will be the sole evidence of their agreement, and parol evidence may not be admitted to vary the terms of the contract in the absence of fraud, accident or mistake. “ ‘Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement____ All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract____’” Scott v. Bryn Mawr, 454 Pa. 304, 312 A.2d 592, 594 (1973) (quoting Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924) (citations omitted)).

The purpose of the rule is to “preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations.” Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120-21, 262 A.2d 851, 853 (1970); see also Crompton-Richmond Co., Inc. — Factors v. Smith, 253 F.Supp. 980 (E.D.Pa.1966), aff'd, 392 F.2d 577 (3d Cir.1967).4 The parol evidence rule applies if the writing represents the entire agreement between the parties.

Both Chapek and Hershey agree that the October 30, 1981 letter was written by Chapek, received by Hershey, and acted upon in accordance with its terms by *995both parties.5 Our task is to determine whether that letter is the final and complete expression of the parties’ agreement. This determination is a matter of law to be decided by the court rather than a jury. See Seidman v. American Express, 523 F.Supp. 1107, 1109 (E.D.Pa.1981); Walker v. Saricks, 360 Pa. 594, 63 A.2d 9, 11 (1949).

Crompton-Richmond, 253 F.Supp. 980 (E.D.Pa.1966), aff'd, 392 F.2d 577 (3d Cir.1977), detailed the manner in which that determination is to be made by explaining:

That determination must be made by examining the writing and comparing it with the alleged oral agreement. If the writing and the oral agreement relate to the same subject matter and if the court concludes that the parties, situated as were the contracting parties, would normally have included both in one agreement, then the subject of the alleged oral agreement must be considered as having been covered by the writing.

Id. at 983.

In Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924), a Pennsylvania Supreme Court case cited in Crompton, supra, the lessee of an office building candy stand argued that he had made an oral agreement for the exclusive right to sell soda water. The court found that the written agreement of the parties — which permitted him to sell various goods, but did not mention an exclusive arrangement to sell soda water — barred consideration of the oral agreement. In so doing, it explained the analysis to be used:

When does the oral agreement come within the field embraced by the written one? This can be answered by comparing the two, and determining whether parties situated as were the ones to the contract, would naturally and normally include the one in the other if it were made. If they relate to the same subject matter and are so interrelated that both would be executed at the same time and in the same contract, the scope of the subsidiary agreement must be taken to be covered by the writing. This question must be determined by the court.

281 Pa. at 323-24, 126 A. 791 (emphasis added).

In the present case, the dispute we must resolve requires that we compare that which was said and agreed to — if it was— at the October 27, 1981 meeting between Chapek and Pingitore, with the letter agreement of October 30, 1981. As the issue has been refined, it appears that the only difference between Chapek’s version of the parties’ agreement and Hershey’s version centers on whether Hershey agreed to pay Chapek a 15% commission on chocolate milk royalties for a period of five years.

If we conclude, as the magistrate and the district court concluded, that the October 30th letter and the subjects discussed at the October 27, 1981 meeting relate to the same subject matter and would normally have been included in one agreement, because they are so interrelated that both “agreements” would have been executed at the same time, then, as the court in Gianni, 281 Pa. at 324, 126 A. 791, instructs, “the subsidiary agreement [in this case, the subjects discussed at the October 27th meeting] must be taken to be covered by the writing [here, the October 30th agreement].” In that situation, all evidence relating to the October 27th meeting was inadmissible in evidence.

B.

We turn, therefore, to a comparison of the October 27,1981 oral agreement and the letter agreement of October 30, 1981.

The October 27th oral agreement is alleged by Chapek to have been based on “Option One” of the August 13, 1981 li*996censing proposal.6 This proposal has three components. The first would provide a 15% commission to Chapek over the first five years of royalties received by Hershey for licensing milk and ice cream. The second provides for a number of marketing research studies, each with a stipulated price. The third provides for reimbursement of Chapek’s travel expenses.

The October 30th letter agreement, which Hershey claims evidences the complete agreement of the parties, references in its preamble the October 27th meeting, and states that it is to serve as an agreement between Chapek and Hershey. The details of that agreement are then set forth, and they essentially consist of the following:

(1) Chapek would provide a confidential marketing research study of the dairy industry and specifically of the chocolate milk market.

(2) Hershey would compensate Chapek for this study in the sum of $17,500 (the same sum specified in Option One for a chocolate milk and ice cream industry study) and would do so in two stages. Hershey also would reimburse Chapek for travel expenses at the same rate as that provided in Option One, but with a ceiling on expenses.

A comparison of the two “agreements” reveals that they obviously relate to the same subject matter. Indeed, the very study mentioned in “Option One” to be performed for $17,500 was agreed to in the October 30th letter, with only incidental modifications. The ice cream study was deleted from the October 30th agreement even though “Option One” included both an ice cream study as well as a chocolate milk study. The manner and time of payment was spelled out in the October 30th agreement, as was the completion date of the project. There can be little question that both parties were focusing on the marketing of Hershey’s chocolate milk — the subject of the August 13th letter, the conceded subject of the October 27th meeting, and the express subject of the October 30th agreement.

Because of the interrelationship of the marketing of chocolate milk and the commission arrangement asserted by Chapek— an arrangement predicated upon royalties received for the licensing of the Hershey chocolate brand — there can be no doubt that the crux of the October 27th meeting and the crux of the October 30th letter are interrelated, and would normally find expression in one writing.

We are not persuaded by Chapek’s argument that the October 30th letter was nothing more than a partial integration, confirming “certain details of a broader consulting arrangement pursuant to which Hershey agreed to pay Chapek a 15% commission on royalties and fees earned from Hershey’s entry into the chocolate milk market.” Appellant’s Brief at 25. As can be seen, the October 30th letter does not furnish any greater detail with respect to the chocolate milk study than does the August 13th proposal. Moreover, as we have observed, the October 30th letter purports to memorialize that meeting, and states that it is to serve as an agreement between the parties. Significantly, neither the October 30, 1981 agreement nor any of the succeeding agreements which provide specific terms of compensation for the services to be performed by Chapek, refer to any commission arrangement or master agreement which would override the specific compensation to which the parties had agreed.7

To support its view that the letter of October 30th is a partial integration, Chapek analogizes this case to Piccari v. Vardaro, 195 Pa.Super. 557, 171 A.2d 807 *997(1961). In Piccari, an oral agreement for homé construction which contained a commission provision was succeeded in time by a second written agreement to purchase lumber, which did not include a commission provision. The subjects of the oral contract (supervision and preparation of plans for a home) were separate from the subjects of the subsidiary agreement (labor and materials for the construction project). The later written contracts contained none of the services called for by the oral agreement, and indeed made no mention of the supervision agreement. The court refused to find complete integration in the later agreement. Id.

Piccari, however, is not precedent for the circumstances being considered here.8 Unlike Piccari, there is no suggestion in the present case that the prior, larger project (the alleged oral agreement of October 27th) was a totally separate oral agreement which could stand on its own as an integrated agreement. Here, Chapek argues only that the prior “oral agreement” was meant to supplement the later written agreements, and that the “oral agreement” provided a term of compensation which was not included in the written agreement itself. But as we have already noted, the October 30th written letter agreement contained a comprehensive price term of $17,500 as well as time provisions for its payment. As Hershey in its brief succinctly points out, “... The plaintiff in Piccari sought to prove an oral contract; Chapek seeks to alter a clearly specified term of a written agreement.” Appellee’s Brief 19-20 (emphasis in original).

We find the case of Keyser v. Margolis, 422 Pa. 553, 223 A.2d 13 (1966), to be closer to the facts of this case. In Keyser, the plaintiff sought a one-third share of the profits of a wine brokerage business; he alleged that as part of his employment contract as a sales representative, it had been orally agreed that he would become a one-third partner. The only document setting forth the terms of the plaintiffs employment was a written memorandum sent by the defendant and initialed by the plaintiff. The memorandum, drawn to confirm the parties’ earlier agreement, outlined the material terms of plaintiff’s employment— specifically, his duties, salary and expense account. It did not discuss a partnership interest for plaintiff. The Pennsylvania Supreme Court refused to permit oral testimony of the partnership interest because it would vary or contradict the terms of the confirmatory memo. Instead, the court in directing summary judgment for the defendant held that the written memo was a complete and integrated written contract.

Just as the plaintiff in Keyser could not vary the terms of his compensation by a prior oral agreement, so too is Chapek’s compensation in this case restricted to the terms of the October 30th written agreement with Hershey. Giving Chapek, the non-movant, the benefit of all inferences, as we must, we nevertheless cannot help but agree with the magistrate’s conclusion that:

It is most unlikely that the potential recipient of a potentially large sum under a contractual arrangement would memorialize in a written agreement the terms of a relatively small subpart of that agreement and omit to memorialize the more significant subpart(s). Defendant has not provided a rational explanation for a party to do so. Moreover, the subsequent course of contracting between the *998parties, involving the reduction of specific agreements for Chapek to perform specific services to Hershey for specific consideration, with written proposals and written acceptances, is inconsistent with the notion that there existed a master agreement binding Hershey to a far greater potential contractual liability to Chapek for largely undefined services.

App. at 358. The magistrate’s report, which was adopted by the district court and with which we agree, additionally points out that:

Chapek drafted the October 30, 1981 agreement. This written agreement purportedly covered the oral agreement made on October 27, 1981. The exact services that Chapek would perform for the potentially large consideration of 15% of Hershey’s fees and royalties were not clearly spelled out in any prior writing, including the August 13, 1981 written proposal. The licensing scheme can not be conceptualized as a different subject matter than the marketing studies. If, as Chapek contends, it was undertaking the specific marketing studies it undertook for specific amounts of consideration at a loss in recognition of its potential profit when the licensing scheme came to reality, the licensing scheme was certainly the same subject matter in Chapek’s view as the marketing studies. This one matter was the matter that had brought Chapek and Hershey together, and was the only subject matter upon which they had dealt. The idea that the licensing scheme and the marketing studies were not the same subject matter fails when it is considered that these concepts were first articulated together by Chapek in its unsolicited August 13, 1981 proposal.

Id. at 359-60.

We are satisfied, despite the various arguments made by Chapek,9 that the October 30, 1981 letter relates to the same subject matter as the October 27th discussions and constitutes the complete integrated agreement of Hershey and Chapek as of that date.

III.

Chapek also argues that the district court erred by granting summary judgment on the quantum meruit claim in favor of Hershey, because Chapek claims genuine issues of material fact remain as to uncompensated services performed by Chapek.

A.

Quantum meruit is a quasi-contractual remedy in which a contract is implied-in-law under a theory of unjust enrichment; the contract is one that is implied in law, and “not an actual contract at all.” Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa.Super. 405, 414, 454 A.2d 599, 603 (1982). In Birchwood Lakes Community Association, Inc. v. Comis, 296 Pa.Super. 77, 86, 442 A.2d 304, 308 *999(1982), the Pennsylvania Superior Court explained that:

A quasi contract, also referred to as a contract implied in law imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement when one party receives an unjust enrichment at the expenses of another. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Thomas v. R.J. Reynolds Tobacco Co., 350 Pa. 262, 38 A.2d 61 (1944); Central Storage & Transfer Co. v. Kaplan, 37 Pa.Commonwealth Ct. 105, 389 A.2d 711 (1978).

An action brought on a theory of quantum meruit sounds in restitution, Overseas Development Disc. Corp. v. Sangamo Constr. Co., Inc., 686 F.2d 498, 510-11 (7th Cir.1982), and to sustain a claim of unjust enrichment, the claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that would be unconscionable for the party to retain without compensating the provider. Torchia on behalf of Torchia v. Torchia, 346Pa.Super. 229, 499 A.2d 581 (1985).

Under Pennsylvania law, “the quasi-contractual doctrine of unjust enrichment [is] inapplicable when the relationship between the parties is founded on a written agreement or express contract.” Benefit Trust Life Ins. Co. v. Union Nat. Bank, 776 F.2d 1174 (3d Cir.1985) (quoting Schott v. Westinghouse, supra). Where an express contract governs the relationship of the parties, a party’s recovery is limited to the measure provided in the express contract; and where the contract “fixes the value of the services involved,” there can be no recovery under a quantum meruit theory. Murphy v. Haws & Burke, 235 Pa.Super. 484, 489, 344 A.2d 543, 546 (1975) (where an implicit contract existed between attorney and law firm, no separate quantum meruit recovery could be obtained).

B.

In support of its quantum meruit claim, Chapek refers generally to work it performed for Hershey, namely “nationwide research into the dairy industry,” compiling and analyzing a broad range of “data regarding chocolate milk products and producers,” and providing “extensive, ongoing business consulting services for Hershey in the new products field.” Appellant’s Brief at 27. Chapek also states that it “brought Hershey the detailed and distinctive licensing concept itself,” and saved Hershey “the time and expense it would have had to incur to research, develop and introduce Hershey brand chocolate milk.” Id. at 29. Chapek also asserts that it “would not have agreed to ^conduct the three assignments alone [i.e., the dairy industry study, the “50 Metro” market study, and the in-depth market analysis], merely for the fees Hershey paid, without more.” Id. at 31.

Chapek itself, however, refers only to two specific instances in which Chapek performed services for Hershey in connection with the chocolate milk licensing project, for which it received no compensation. Appellant’s Brief at 26. These instances concern the work performed by Chapek in relation to projects involving Nestle’s Corporation and Knudsen’s Dairy. However, any quantum meruit award due to Chapek for those services has been removed from the subject of this appeal. See note 2, supra.

We agree with the district court that all of the remaining services performed by Chapek fall within the scope of those individual and separate agreements into which Chapek and Hershey entered and for which Chapek was admittedly compensated. As we have earlier observed, where an express agreement governs the relationship between the parties, recovery is limited to the measure provided in the contract. Quantum meruit will not be awarded when there is an express agreement. See Murphy v. Haws & Burke, supra.

Our review of the record discloses that with the exception of Nestle’s and Knudsen’s claims, none of Chapek’s quantum meruit allegations relate to services that are not included within the scope of the separate agreements entered into by Chapek and Hershey. Thus, Chapek makes a *1000quantum meruit claim that it “compiled data” regarding chocolate milk, despite the fact that this service was contemplated in the agreement of October 30th, which concerned a study of the dairy industry in general and the chocolate milk industry specifically — and pursuant to which Hershey paid Chapek $17,500.

Chapek’s claim that it provided ongoing services for Hershey in the new products field, is based on the very services which Chapek performed according to the baked sweet goods agreement, and pursuant to which, Hershey paid Chapek $20,125. Appellant’s Brief at 27. Chapek’s claim that it contributed to Hershey the concept of licensing the Hershey brand name to dairies is based on the very subject covered by the dairy industry and chocolate milk industry agreement, the “50 Metro” agreement, and the “in-depth market analysis” agreement, for which Hershey paid Chapek $17,500, $50,000 and $23,825, respectively. Nor has Chapek documented any benefit which Hershey obtained unjustly as a result of the unsolicited proposals made by Chapek for projects which Hershey rejected. See supra, p. 992. Therefore summary judgment in favor of Hershey on the quantum meruit claim is appropriate.

As Hershey has pointed out in its brief, whether Chapek struck a “good deal,” is not a genuine issue of fact which can preclude the entry of summary judgment if an express written contract governs. Appellant’s Brief at 42. Since the record shows that Chapek received all the compensation that was due under its written agreement of October 30, 1981 and the subsequent agreements into which Hershey entered, Chapek cannot argue that its services were worth more than it received.

IV.

We will affirm the Order of the district court dated September 9, 1986, in all respects.

BECKER, Circuit Judge,

dissenting.

I believe that events following the October 30, 1981 letter, and in particular, certain statements by Hershey, clearly demonstrate that the October 30 letter was not intended to constitute the fully integrated agreement of the parties, but rather only memorialized a part of their agreement. I would therefore admit parol evidence and permit Chapek to prove Hershey’s liability to it under “Option One.”

The primary basis for this conclusion is that, when Pingitore and Chapek met in December 1983 to discuss Chapek's request that Hershey begin making the commission payments called for in Option One, Pingitore offered several compensation options in lieu of the 15% commission. (Appendix at 279 et seq.).1 In my view, this offer evidences Hershey’s understanding that it had entered into an ongoing consulting agreement with Chapek pursuant to Option One, and that it owed Chapek more than the fixed-sum payments set forth in Option One.

Second, the evidence is undisputed that Chapek performed services at Hershey’s behest, including the Nestle investigation and the arrangement of the Knudsen Dairy meeting, for which Chapek was not paid. That Hershey requested Chapek to perform services outside the scope of the three specific assignments set forth under Option One provides evidence of the existence of a broader consulting agreement. It seems doubtful to me that Chapek would have performed these services gratuitously; rather it seems more reasonable to believe that it did so as part of an on-going consulting engagement, such as Option One embodies.

Additionally, Chapek specifically referred to Option One in the summary “Introduction” to the second assignment performed *1001for Hershey — the “50-Metro” study. Conspicuously set out in the first paragraph of this report and read aloud to Mr. Pingitore was the following statement:

The chocolate milk project at Hershey began with the submission of a concept proposal by Ralph Chapek, Inc., to Hershey Foods in August, 1981. Hershey accepted Chapek’s Option One listed in the Proposal and work on the industry study listed in Option One was initiated in December, 1981.

(Appendix at 106; emphasis supplied.) This subsequent reference to Option One in the second study undertaken by Chapek and accepted by Hershey, which Hershey did not deny, is an arguable admission by Hershey that the parties proceeded pursuant to Option One, estopping Hershey from denying the existence of the “Commission Based” agreement.2

Moreover, in terms of the quantum meruit claim, Hershey’s offer to discuss alternatives to the 15% commission constitutes an admission and demonstrates Hershey’s recognition that Chapek had in fact performed extensive research and marketing services for which it had not been compensated. Pingitore’s words and acts thus indicate both his own understanding of the nature and extent of Chapek’s effort, and of the value of those services.

In view of the foregoing, I believe that evidence that Hershey accepted Option One of the Licensing Proposal is not offered to “vary or contradict” Chapek’s October 30, 1981 letter, but rather to establish the existence of a broader consulting agreement between Hershey and Chapek. I believe that the evidence raises a serious question whether the October 30th letter constituted an integrated agreement. And I believe that, considering all the admissible evidence, there is a genuine issue of material fact as to whether the parties in fact agreed to Option One.

I intimate no view as to the likelihood of Chapek’s success in proving what seems to be, for Chapek, an extraordinarily generous arrangement. On the other hand, Chapek appears to be a marketing “whiz” and it seems to have been Chapek that awoke the colossus of the chocolate world to the possibilities of marketing fresh milk products under its magic name. I would let a jury decide what the arrangement was. I respectfully dissent.3