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 instances in agreement legislations. besides the fact that, there's a few confusion as to while such an award may be made. the ethical bases for disgorgement damages are deterrence and punishment, which form the therapy in vital methods. Courts also are interested by vindication of the claimant's functionality curiosity, and it really 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 can 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 occasion; and 'agency challenge' circumstances, the place the defendant delivers the claimant he'll no longer do a definite factor, and the claimant unearths it tricky to oversee the functionality. in addition, disgorgement might be complete or partial, and 'reasonable expense damages' for breach of agreement are top understood as partial disgorgement instead of 'restitutionary damages.' Equitable bars to reduction must also be followed when it comes to disgorgement damages, as should still allowances for ability and energy. Accounting for revenue for Breach of agreement may be of curiosity to agreement and advertisement attorneys, and it'll be particularly important to somebody with an curiosity in agreement treatments and restitution. The ebook attracts on case legislation in a couple of universal legislation jurisdictions, basically England, Wales, and Australia. (Series: Hart stories in inner most legislations)
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Extra resources for Accounting for Profit for Breach of Contract. Theory and Practice
While in our notional hierarchy of remedies in contract law specific relief is awarded where compensation for the claimant’s factual loss is inadequate, disgorgement damages are not awarded as a substitute for compensation for the claimant’s factual loss. 90 However, it is sometimes said that disgorgement damages are awarded ‘in lieu of’ specific relief when specific relief has been put out of the claimant’s reach by the defendant, just as Lord Cairns’ Act damages are awarded in lieu of injunctive relief.
Professor McInnes has argued that disgorgement damages are compensating for a lost right: see M McInnes, ‘Account of Profits for Common Law Wrongs’ in S Degeling and J Edelman (eds), Equity in Commercial Law (Pyrmont, NSW, Lawbook Co, 2004) 416–18; M McInnes, ‘Gain, Loss and the User Principle’ (2006) 14 Restitution Law Review 76, 84–86. ’ in R Cunnington and D Saidov (eds), Contract Damages: Domestic and International Perspectives (Oxford, Hart Publishing, 2008) 165, 173; Rotherham, ibid 44–45.
74 Dr Odudu and Professor Virgo argue that any analysis of Wrotham Park damages must be more nuanced: These restitutionary awards will be made where the claimant has not suffered a pecuniary loss. Instead the courts appear willing to identify a different type of loss arising from the invasion of the claimant’s rights. Indeed, in Blake, Lord Nicholls of Birkenhead recognises that user damages are exceptions to the general rule that damages are assessed on the basis that they compensate the claimant for loss or injury.