How to Think about Disgorgement of Profits for Breach of Contract
Author: Ling Charmaine Han
Publisher:
Published: 2012
Total Pages: 75
ISBN-13:
DOWNLOAD EBOOKPosts
Accounting for Profit for Breach of Contract
Author: Katy Barnett
Publisher: Bloomsbury Publishing
Published: 2012-05-31
Total Pages: 197
ISBN-13: 1847319521
DOWNLOAD EBOOKThis 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.
Disgorgement of Profits
Author: Ewoud Hondius
Publisher: Springer
Published: 2015-08-12
Total Pages: 517
ISBN-13: 3319187597
DOWNLOAD EBOOKDisgorgement 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
Author: C. Bradford Biddle
Publisher: Cambridge University Press
Published: 2019-06-27
Total Pages: 379
ISBN-13: 1108426751
DOWNLOAD EBOOKThrough 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.
Disgorgement of the Profits of Breach of Contract
Author: Lionel D. Smith
Publisher:
Published: 1994
Total Pages: 20
ISBN-13:
DOWNLOAD EBOOKGain-Based Damages
Author: James Edelman
Publisher: Bloomsbury Publishing
Published: 2002-04-19
Total Pages: 314
ISBN-13: 1847310478
DOWNLOAD EBOOKOn July 27,2000 the House of Lords delivered a decision where, for the first time in English law, it explicitly recognised that damages for civil wrongs can be assessed by reference to a defendant (wrongdoer)'s gain rather than a claimant's loss. The circumstances in which such gain-based damages might be available were left for development incrementally. This book considers the nature of gain-based damages and explains when they have historically been available and why, and provides a framework for appreciating the operation of such damages awards. The first part of the book justifies the existence of these damages, which focus upon a defendant wrongdoer's gain made as a result of a civil wrong, explaining the nature and need for such a remedy and the scope of civil wrongs. The core thesis of the book is that two different forms of such gain-based damages exist: the first is concerned with restitution of a defendant's gains wrongfully transferred from a claimant; the second is concerned only with stripping profits from the defendant's hands. Once these two gain-based damages awards are separated they can be shown to be based upon different rationales and the basis for their availability can be easily understood. The second part of the book considers and applies this approach, demonstrating its operation throughout the cases of civil wrongs. The operation of the two forms of gain-based damages is demonstrated in cases in the area of tort (chapter 4), contract (chapter 5), equitable wrongs (chapter 6) and intellectual property wrongs (chapter 7). It is shown that these gain-based damages awards have long been available in these areas and their operation has conformed to clear principle. The difficulty that has obscured the principle is the nomenclature which has hidden the true gain-based nature of many of these damages awards.
Contract Enforcement
Author: Edward Yorio
Publisher: Wolters Kluwer
Published: 2011-01-01
Total Pages: 832
ISBN-13: 145480114X
DOWNLOAD EBOOKRev. ed. of: Contract enforcement / Edward Yorio. c1989.
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:
DOWNLOAD EBOOKA 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.
Disgorgement of Profits in Chilean Private Law
Author: Rodrigo Momberg
Publisher:
Published: 2015
Total Pages: 8
ISBN-13:
DOWNLOAD EBOOKThis chapter examines the availability of account of profits both in cases of breach of contract and in tort. The main focus will be placed on the latter, where the theory of unjustified enrichment and the action based on Articles 2316 and 1458 of the Civil Code may be considered, at least theoretically, as the two main sources for disgorgement of profits in Chilean private law.
Supreme Disgorgement
Author: Caprice L. Roberts
Publisher:
Published: 2017
Total Pages: 28
ISBN-13:
DOWNLOAD EBOOKDisgorgement of defendant's wrongful gains is an ancient remedy. It applies across a spectrum of contexts from trademark infringement to fiduciary duties, from common law to statutes, from public to private law. This remedy is not regarded as quintessential in American contract law. That is changing. My earlier work -- as cited by the Supreme Court -- predicted this shift based upon a new rule in the Restatement (Third) of Restitution and Unjust Enrichment. The rule operationalizes disgorgement of profits for opportunistic breaches of contract. This new conceptualization of precedent authorizes a gain-based remedy that exceeds the compensation goals of contract law's preferred, default remedy of expectancy damages.This remedy is bold and will affect the law of contracts, remedies, and restitution. I show, in a companion article, how state and federal courts resolve novel disgorgement requests for breach of contract claims. In the instant article, I examine an unusual endorsement of disgorgement by the Supreme Court sitting in original jurisdiction over the breach of a water-rights compact between states. Harnessing broad powers of equity jurisdiction, the Court adopts a $1.8 million disgorgement award exceeding compensation. It strips part of defendant's profits and stacks onto a compensatory award for losses sustained. Relying on the Restatement (much to Justice Scalia's chagrin), the Court permits disgorgement to deter defendant's knowingly exposing plaintiff to a substantial risk of breach. This provocative application offers a lens through which to explore broader questions: whether, when, and how the disgorgement remedy should apply to breach of contracts, whether public or private. I conclude that disgorgement is a valuable remedy for breach of contract, but judges must exercise reasoned discretion in application to proper facts and restraint in tying the measurement to causation. I also maintain that the inclusion of disgorgement in the stable of remedies broadens the scope of contract law to include inquiries and features typically associated with tort law. As in all of my remedies work, I argue remedies shape right -- here: granting the remedy of disgorgement expands the shape of the underlying contract right in both public and private law.
