By Katy Barnett
This ebook defends the view that an award of an account of earnings (or 'disgorgement damages') for breach of agreement will occasionally be justifiable, and it matches in the orthodox rules and circumstances in agreement legislation. even if, there's a few confusion as to whilst such an award may be made. the ethical bases for disgorgement damages are deterrence and punishment, which form the therapy in very important methods. Courts also are inquisitive about vindication of the claimant's functionality curiosity, and it truly is pivotal that the claimant can procure a alternative functionality through an award of damages or particular aid. The e-book argues that disgorgement damages may be on hand in different types of case: 'second sale' situations, the place the defendant breaches his agreement with the claimant to make a extra ecocnomic agreement with a 3rd social gathering; and 'agency challenge' situations, the place the defendant gives you the claimant he'll no longer do a undeniable factor, and the claimant unearths it tough to oversee the functionality. in addition, disgorgement might be complete or partial, and 'reasonable price damages' for breach of agreement are top understood as partial disgorgement instead of 'restitutionary damages.' Equitable bars to reduction must also be followed in terms of disgorgement damages, as may still allowances for ability and energy. Accounting for revenue for Breach of agreement could be of curiosity to agreement and advertisement legal professionals, and it'll be particularly worthy to someone with an curiosity in agreement treatments and restitution. The booklet attracts on case legislation in a few universal legislations jurisdictions, essentially England, Wales, and Australia. (Series: Hart stories in inner most legislation)
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Extra resources for Accounting for Profit for Breach of Contract. Theory and Practice
24 According to corrective justice theorists, awards which do not fit within a corrective justice framework are illegitimate. 25 A Compensation for Loss If compensatory damages are seen as compensation for factual losses suffered by a person, then, by their very nature, full disgorgement damages do not fit within such a rationale. , Harvard University Press, 1995); E Weinrib, ‘Aristotle’s Forms of Justice’ in S Panagiotou (ed), Justice, Law and Method in Plato and Aristotle (Edmonton, Academic Print & Publishing, 1987) 133–52; E Weinrib, ‘Restitutionary Damages as Corrective Justice’ (2001) 1 Theoretical Inquiries in Law 1; E Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349; E Weinrib, ‘Punishment and Disgorgement as Contract Remedies’ (2003) 78 Chicago-Kent Law Review 55.
22 The private law intervenes only to restore equality between the parties. ’23 Weinrib argues that the reasoning of the courts in disgorgement damages cases is instrumentalist. 24 According to corrective justice theorists, awards which do not fit within a corrective justice framework are illegitimate. 25 A Compensation for Loss If compensatory damages are seen as compensation for factual losses suffered by a person, then, by their very nature, full disgorgement damages do not fit within such a rationale.
A compensatory rationale cannot explain full disgorgement damages, whether as compensation for loss or substitutive compensation. It does not fit with what courts actually do unless the definitions of ‘loss’ and ‘gain’ are distorted. And while it is perhaps more arguable that partial disgorgement is compensatory in Attorney-General v Blake (Blake)  UKHL 45,  1 AC 268 (HL). See, eg Jaggard v Sawyer (Jaggard)  EWCA Civ 1,  1 WLR 268 (CA) 291 (Millett LJ); Gafford v Graham (Gafford)  EWCA Civ 666, (1999) 77 P & CR 73 (CA) 86 (Nourse LJ); WWF – World Wide Fund for Nature v World Wrestling Federation Entertainment Inc (WWF)  EWCA Civ 286,  1 WLR 445 (CA)  (Chadwick LJ); Smith v Landstar Properties (2011) BCCA 44 (BCCA) ,  (Finch CJ).