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 ideas and circumstances in agreement legislation. even if, 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 treatment in very important methods. Courts also are excited about vindication of the claimant's functionality curiosity, and it's pivotal that the claimant can procure a replacement functionality through an award of damages or particular reduction. 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 get together; and 'agency challenge' instances, the place the defendant grants the claimant he'll now not do a undeniable factor, and the claimant unearths it tough to oversee the functionality. furthermore, disgorgement might be complete or partial, and 'reasonable cost damages' for breach of agreement are top understood as partial disgorgement instead of 'restitutionary damages.' Equitable bars to aid also needs to be followed with regards to disgorgement damages, as should still allowances for ability and energy. Accounting for revenue for Breach of agreement might be of curiosity to agreement and advertisement legal professionals, and it'll be specially useful to someone with an curiosity in agreement treatments and restitution. The ebook attracts on case legislation in a few universal legislation jurisdictions, essentially England, Wales, and Australia. (Series: Hart reports in deepest legislation)
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Extra info for Accounting for Profit for Breach of Contract. Theory and Practice
5 S Thel and P Siegelman, ‘You Do Have to Keep Your Promises: A Disgorgement Theory of Contract Remedies’ (2011) 52 William and Mary Law Review 1181, 1239. 6 ibid 1230, fn 206. Introduction 13 rationale were paramount, courts might allow the claimant to recover both her loss and the gain made by the defendant. The ‘double recovery’ rule operates to preclude this, suggesting that it operates to prevent retribution from playing too large a role in private law. The two goals (deterrence and punishment) may work in tandem.
25 Rotherham (n 10) 189–90. 16 Rationales Behind Disgorgement Damages to cause the defendant to disgorge his factual gain. There is no need for the claimant to have suffered any pecuniary loss. Therefore, it would appear difficult to fit full disgorgement damages into a compensatory rationale. 27 The argument presumes a hypothetical bargain, where the defendant would have paid the claimant a reasonable sum for release from the contract or from an injunction restraining breach. By failing to bargain, the defendant has caused the claimant a pecuniary loss.
Courts have already given extensive thought to questions of substitutability when awarding specific relief and these cases provide guidelines as to when it will be appropriate to award disgorgement damages. Chapters four and five establish that disgorgement damages for breach of contract are coherent with existing law. The ‘second sale’ cases, which involve a breach of contract in order to sell the subject matter of the contract to a third party more profitably, work along the same principles as awards for specific performance.