Accounting for Profit for Breach of Contract
Accounting for Profit for Breach of Contract

Author: Katy Barnett

Publisher: Bloomsbury Publishing

Published: 2012-05-31

Total Pages: 197

ISBN-13: 1847319521

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This book defends the view that an award of an account of profits (or 'disgorgement damages') for breach of contract will sometimes be justifiable, and fits within the orthodox principles and cases in contract law. However there is some confusion as to when such an award should be made. The moral bases for disgorgement damages are deterrence and punishment, which shape the remedy in important ways. Courts are also concerned with vindication of the claimant's performance interest, and it is pivotal in these cases that the claimant cannot procure a substitute performance via an award of damages or specific relief. The book argues that disgorgement damages should be available in two categories of case: 'second sale' cases, where the defendant breaches his contract with the claimant to make a more profitable contract with a third party; and 'agency problem' cases, where the defendant promises the claimant he will not do a certain thing, and the claimant finds it difficult to supervise the performance. Moreover, disgorgement may be full or partial, and 'reasonable fee damages' for breach of contract are best understood as partial disgorgement rather than 'restitutionary damages'. Equitable bars to relief should also be adopted in relation to disgorgement damages, as should allowances for skill and effort. This book will be of interest to contract and commercial lawyers, and will be especially valuable to anyone with an interest in contract remedies and restitution. It draws on case law in a number of common law jurisdictions, primarily England and Wales, and Australia.

Account of Profits
Account of Profits

Author: Peter Devonshire

Publisher:

Published: 2013

Total Pages: 194

ISBN-13: 9780864728029

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Account of Profits is a powerful weapon in the litigator's arsenal. Written by Peter Devonshire ( University ofAuckland ), a leading scholar on the subject, it is an important but underutilised remedy that can be granted in cases where defendants have profited from their wrongs. An account of profits is the principal remedy for breach of fiduciary duty and breach of obligations of confidence. The remedy is also available in respect of certain common law wrongs and has an important role in cases of intellectual property infringement. The book draws primarily from English and Australian case law as well as judgments of the New Zealand courts. It also includes the decisions of other Commonwealth jurisdictions and the views of leading academic commentators. The author provides a clear and comprehensive explanation of the legal principles regarding an account of profits. The remedy is assessed in context, enabling the reader to identify the key issues and apply the relevant concepts. The Hon Michael Kirby describes Account of Profits as "original, timely, practical and forward-looking" and "a book of great practical worth for lawyers in many countries where the common law and the law of equity still flourish".

Contract Theory and Gain-Based Recovery
Contract Theory and Gain-Based Recovery

Author: David Winterton

Publisher:

Published: 2015

Total Pages: 29

ISBN-13:

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In Accounting for Profit for Breach of Contract: Theory and Practice, Dr Barnett attempts to explore systematically the circumstances in which such gain-based relief for breach of contract both is and should be available. Rather than focussing on the book's strengths, this article seeks to examine two important theoretical questions raised by her account. The first concerns its theoretical foundations. Not only does Barnett invoke a highly contestable theory of contractual rights that does not meaningfully advance her argument, she also fails to explain whether the various normative considerations invoked to support her theory are mutually compatible, and therefore whether her account satisfies her self-imposed criterion of 'coherence'. A second, related, question Barnett's account raises is whether disgorgement for contractual breach is ever justifiable. Like others, Barnett claims that profit-stripping for breach of contract is justified by considerations of 'deterrence' and 'retribution'. But this common view is often too quickly assumed because there are good reasons to doubt whether these two rationales, either separately or in combination, are capable of justifying disgorgement as a response to contractual breach.

Disgorgement of Profits
Disgorgement of Profits

Author: Ewoud Hondius

Publisher: Springer

Published: 2015-08-12

Total Pages: 517

ISBN-13: 3319187597

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Disgorgement of profits is not exactly a household word in private law. Particularly in civil law jurisdictions – as opposed to those of the common law – the notion is not well known. What does it stand for? It is best illustrated by examples. One of the best known being the British case of Blake v Attorney General, [2001] 1 AC 268. In which a double spy had been imprisoned by the UK government before escaping and settling in the former Soviet Union. While there wrote a book on his experiences, upon which the UK government claimed the proceeds of the book. The House of Lords, as it then was, allowed the claim on the basis of Blake’s breach of his employment contract. Other examples are the infringement of intellectual property rights, where the damages of the owner are limited, but the profits of the wrongdoer immense. In such cases, the question arises whether the infringing party should be disgorged of his profits. This volume aims at establishing the notion of disgorgement of profits as a keyword in the discourse of private law. It does not purport to answer the question whether or not such damages should or should not be awarded. It does however aim to contribute to the discussion, the arguments in favour and against, and the organisation of the various actions.

Patent Remedies and Complex Products
Patent Remedies and Complex Products

Author: C. Bradford Biddle

Publisher: Cambridge University Press

Published: 2019-06-27

Total Pages: 379

ISBN-13: 1108426751

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Through a collaboration among twenty legal scholars from North America, Europe and Asia, this book presents an international consensus on the use of patent remedies for complex products such as smartphones, computer networks, and the Internet of Things. This title is also available as Open Access on Cambridge Core.

Remedies for Breach of Contract
Remedies for Breach of Contract

Author: Mindy Chen-Wishart

Publisher: Oxford University Press

Published: 2016-02-12

Total Pages: 531

ISBN-13: 0191074411

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Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where until now, limited critical commentaries have been available in the English language. In this new six part series of scholarly essays from leading scholars and commentators, each volume will offer an insider's perspective into specific areas of contract law, including: remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy, and will explore how these diverse jurisdictions address common problems encountered in contractual disputes. Concluding each volume will be a closing discussion of the convergences and divergences across the jurisdictions. Volume I of this series examines the remedies for breach of contract in the laws of China, India, Japan, Korea, Taiwan, Singapore, Malaysia, Hong Kong, Korea, and Thailand. Specifically, it addresses the readiness of each legal system in their action to insist that parties perform their obligations; the methods of enforcing the parties' agreed remedies for breach; and the ways in which monetary compensation are awarded. Each jurisdiction is discussed over two chapters; the first chapter will examine the performance remedies and agreed remedies, while the second explores the monetary remedies. A concluding chapter offers a comparative overview.

A Corrective Justice Account of Disgorgment for Breach of Contract by Analogy with Fiduciary Remedies
A Corrective Justice Account of Disgorgment for Breach of Contract by Analogy with Fiduciary Remedies

Author: Anthony Sangiuliano

Publisher:

Published: 2016

Total Pages: 43

ISBN-13:

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A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords in Attorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.