By Katy Barnett
This publication defends the view that an award of an account of gains (or 'disgorgement damages') for breach of agreement will occasionally be justifiable, and it suits in the orthodox rules and situations in agreement legislations. even if, there's a few confusion as to whilst 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 taken with vindication of the claimant's functionality curiosity, and it truly is pivotal that the claimant can procure a alternative functionality through an award of damages or particular reduction. The ebook argues that disgorgement damages may be on hand in different types of case: 'second sale' instances, the place the defendant breaches his agreement with the claimant to make a extra ecocnomic agreement with a 3rd get together; and 'agency challenge' situations, the place the defendant grants the claimant he'll no longer do a undeniable factor, and the claimant unearths it tough to oversee the functionality. furthermore, disgorgement will be complete or partial, and 'reasonable price damages' for breach of agreement are most sensible understood as partial disgorgement instead of 'restitutionary damages.' Equitable bars to aid must also be followed when it comes to disgorgement damages, as may still allowances for ability and energy. Accounting for revenue for Breach of agreement can be of curiosity to agreement and advertisement legal professionals, and it'll be particularly invaluable to someone with an curiosity in agreement treatments and restitution. The e-book attracts on case legislations in a few universal legislations jurisdictions, basically England, Wales, and Australia. (Series: Hart experiences in inner most legislations)
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Additional info for Accounting for Profit for Breach of Contract. Theory and Practice
86 Stevens (n 13) 329. ’ in J Neyers, R Bronagh and S Pitel (eds), Exploring Contract Law (Oxford, Hart Publishing, 2009) 171, 192–93. 88 Burrows (n 29) 185. 82 83 Compensatory Rationale 25 ages are, nor can they award the actual performance contracted for in the way that specific relief does. 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.
Ibid 815. 36 Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 562–63. 37 Wrotham Park (n 34) 811. 38 Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 563. 39 See, eg M McInnes, ‘Gain, Loss and the User Principle’ (2006) 14 Restitution Law Review 76, 84–86. 40 Tamares (Vincent Square) Ltd v Fairpoint  EWHC 212 (Ch). 41 Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 563. 42 Accordingly, disgorgement damages for breach of contract cannot be justified according to a compensatory rationale because they do not compensate for a factual loss.
Compensation for loss is hard to establish as a rationale for full disgorgement damages, despite the attempts of some courts and scholars who argue the contrary. Perhaps a compensatory rationale sits easier with at least some of the Wrotham Park damages cases (which I see as ‘partial disgorgement’), but for reasons which will be explained in chapters two and three, it cannot explain all such cases. This book treads the middle line between the polar opposite approaches towards contract theory. On the one hand, the promissory or rights-based analysis emphasises the claimant’s right to performance and argues that the primary obligation arising from a contract is the claimant’s right to have the contract performed.