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 ideas and situations in agreement legislation. notwithstanding, 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 therapy in vital methods. Courts also are enthusiastic about 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 ebook argues that disgorgement damages could be to be had 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 occasion; and 'agency challenge' instances, the place the defendant provides the claimant he'll no longer do a definite factor, and the claimant reveals it tricky to oversee the functionality. additionally, disgorgement can be complete or partial, and 'reasonable rate damages' for breach of agreement are most sensible understood as partial disgorgement instead of 'restitutionary damages.' Equitable bars to reduction also needs to be followed in terms of disgorgement damages, as should still allowances for ability and energy. Accounting for revenue for Breach of agreement should be of curiosity to agreement and advertisement legal professionals, and it'll be specially precious to an individual with an curiosity in agreement treatments and restitution. The e-book attracts on case legislations in a couple of universal legislations jurisdictions, basically England, Wales, and Australia. (Series: Hart reports in inner most legislation)
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Additional info for Accounting for Profit for Breach of Contract. Theory and Practice
52 ibid 84–85. 53 Burrows, ‘Damages on the ‘Wrotham Park Basis’’ (n 29) 173; Rotherham (n 32) 44–45. Against Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 564. 54 Burrows, ‘Damages on the ‘Wrotham Park Basis’’ (n 29) 173. 55 ibid. See, eg Wrotham Park (n 34) and Tamares (n 40). Burrows argues that characterising such cases as compensatory on the basis of the loss of an opportunity to apply for an injunction fails for similar reasons: Burrows, ibid 171–72, referring to the reasons of Gabriel Moss QC in Tamares.
42 43 Compensatory Rationale 19 wrongful occupation of land,46 trespass arising from wrongful use of land,47 detention of chattels48 and nuisance49 (all varieties of proprietary tort). 51 As will be canvassed in chapter six, I have some sympathy for McInnes’ view in this latter regard; however, I see the ‘reasonable fee’ as a yardstick by which to measure gain instead. 52 He does not explain whether a ‘reasonable fee’ award will or should be awarded in a case where a contract is not intended to protect property rights.
Drawing on 11 Compare C Webb, ‘Performance and Compensation: An Analysis of Contract Damages and Contractual Obligation’ (2006) 26 OJLS 1. 12 Robinson v Harman (1848) 1 Ex 850, 154 ER 363; Photo Productions Ltd v Securicor Transport Ltd  UKHL 2,  AC 827 (HL). 13 R Cunnington, ‘The Measure and Availability of Gain-Based Damages for Breach of Contract’ in R Cunnington and D Saidov (eds), Contract Damages: Domestic and International Perspectives (Oxford, Hart Publishing, 2008) 207, 215; R Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) 59–62.