§ 3004. Where restoration of benefits before judgment unnecessary. A
party who has received benefits by reason of a transaction that is void
or voidable because of fraud, misrepresentation, mistake, duress,
infancy or incompetency, and who, in an action or by way of defense or
counterclaim, seeks rescission, restitution, a declaration or judgment
that such transaction is void, or other relief, whether formerly
denominated legal or equitable, dependent upon a determination that such
transaction was void or voidable, shall not be denied relief because of
a failure to tender before judgment restoration of such benefits; but
the court may make a tender of restoration a condition of its judgment,
and may otherwise in its judgment so adjust the equities between the
parties that unjust enrichment is avoided.