By Katy Barnett
This e-book 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 legislation. despite the fact that, there's a few confusion as to while such an award will be made. the ethical bases for disgorgement damages are deterrence and punishment, which form the treatment in vital methods. Courts also are all for vindication of the claimant's functionality curiosity, and it truly is pivotal that the claimant can procure a replacement functionality through an award of damages or particular aid. The booklet argues that disgorgement damages may be to be had in different types of case: 'second sale' circumstances, the place the defendant breaches his agreement with the claimant to make a extra ecocnomic agreement with a 3rd celebration; and 'agency challenge' instances, the place the defendant provides the claimant he'll now not do a definite factor, and the claimant unearths it tough to oversee the functionality. furthermore, disgorgement should 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 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 may be of curiosity to agreement and advertisement attorneys, and it'll be in particular beneficial to somebody with an curiosity in agreement treatments and restitution. The e-book attracts on case legislations in a few universal legislation jurisdictions, basically England, Wales, and Australia. (Series: Hart stories in inner most legislation)
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Additional info for Accounting for Profit for Breach of Contract. Theory and Practice
Rather, disgorgement damages are substitutive for the right. 86 In the context of disgorgement damages for breach of contract, however, this problem is not present. 87 Burrows has criticised Stevens’ analysis, saying: The Stevens approach is flawed in imagining that we sensibly can, or would want to, put a value on the right that has been infringed without considering the consequential impact of that infringement. In principle I would argue that the value of a right infringed should be measured by the consequences of the infringement for the victim; and that is what the traditional compensatory approach does88 It is important to have regard to the consequences of infringement for the victim.
Of course, this may depend on the nature of the contract. In fiduciary contracts the beneficiary generally would obtain the profit but for the breach, since it was the fiduciary’s duty to make the profit for the beneficiary. Nonetheless, in the vast majority of ordinary contracts, this argument perpetuates a fiction, and disgorgement damages cannot be regarded as compensatory without adopting a concept of ‘loss’ which is so broad as to be practically meaningless. It suffers from a lack of coherence in that the concept of ‘loss’ adopted lacks consistency and intelligibility.
44 Alice can claim that Boris has a duty to do or to refrain from doing a particular act because Boris created an obligation towards Alice when they entered into a voluntary undertaking together. The contract gives rise to a ‘performance interest’ on the part of Alice that needs to be recognised. The question is then how the law recognises an infringement or a deprivation of that right. Specific relief attempts to grant the primary right to performance under the contract itself; by contrast, substitutive compensation attempts to put a monetary value on the deprivation of the right.