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Author: James Edelman
Publisher: Bloomsbury Publishing
ISBN: 1847310478
Category : Law
Languages : en
Pages : 314
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Book Description
On 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.
Author: James Edelman
Publisher: Bloomsbury Publishing
ISBN: 1847310478
Category : Law
Languages : en
Pages : 314
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Book Description
On 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.
Author: Ewoud Hondius
Publisher: Springer
ISBN: 3319187597
Category : Law
Languages : en
Pages : 507
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Book Description
Disgorgement 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.
Author: Katy Barnett
Publisher: Bloomsbury Publishing
ISBN: 1847319513
Category : Law
Languages : en
Pages : 256
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Book Description
This 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.
Author: Djakhongir Saidov
Publisher: Bloomsbury Publishing
ISBN: 1847314333
Category : Law
Languages : en
Pages : 530
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Book Description
This book is a collection of essays examining the remedy of contract damages in the common law and under the international contract law instruments such as the Vienna Convention on Contracts for the International Sales of Goods and the UNIDROIT Principles of International Commercial Contracts. The essays, written by leading experts in the area, raise important and topical issues relating to the law of contract damages from both theoretical and practical perspectives. The book aims to inform readers of current developments, problems, trends and debates surrounding contract damages and reflects an ongoing dialogue on damages among representatives of common law, civil law, mixed and trans-national legal systems. The general issues addressed in the collection include the purpose and scope of damages, the measures of damages, recoverability of losses, methods of limiting damages and the assessment of damages. A special emphasis is placed on the examination of the role of gain-based damages, the meaning and definition of loss, the recoverability of damages for injury to business reputation, the recoverability of legal fees, the rules of mitigation and foreseeability, the dilemma between the 'abstract' and 'concrete' approaches to the calculation of damagesand the relationship between changes in monetary value and the assessment of damages.
Author: James Edelman
Publisher: Bloomsbury Publishing
ISBN: 1847316824
Category : Law
Languages : en
Pages : 209
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Book Description
On 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.
Author:
Publisher:
ISBN:
Category : Evidence, Expert
Languages : en
Pages : 652
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Book Description
Author: American Bar Association. House of Delegates
Publisher: American Bar Association
ISBN: 9781590318737
Category : Law
Languages : en
Pages : 216
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Book Description
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
Author: Daniel Zatorski
Publisher: Springer Nature
ISBN: 303125452X
Category : Law
Languages : en
Pages : 169
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Book Description
This book focuses on an emerging problem in English contract law: what should be done when a party has been unjustly enriched as the result of a breach of contract but there is no measurable loss suffered by said party? Two rulings are at the heart of the book: Wrotham Park Estate v Parkside Homes and Attorney-General v Blake. These two cases can be said to have established gain-based remedies in English contract law. However, the principles that underpin these remedies are not entirely clear and are subject to debate. This book analyses these principles through the lens of compensatory and restitutionary approaches. Moreover, it applies a comparative analysis of these approaches through the lens of the civil law jurisdiction in Poland. Since the term ‘compensation’ is not a universal concept, the book distinguishes between two rationales in the compensatory analysis. The first, reparative compensation, is defined as a form of monetary recompense for loss or damage actually suffered. The second, substitutive compensation, represents a monetary equivalent to a right that a person has been deprived of or denied. Both rationales require the application of a broad notion of loss in order to make gain-based remedies workable in both English and Polish law. In contrast, ‘restitution’ states that a person cannot be permitted to profit from their own wrongdoing. Based on this principle, the book argues that gain-based remedies could be applied under Polish law through the rules of unjust enrichment. However, in order to do so, a broader understanding of the subtraction prerequisite (the enrichment being at the aggrieved party’s expense) would have to be adopted. The book concludes that unjust enrichment is a more natural way of implementing gain-based remedies in civil law jurisdictions.
Author: Peter Birks
Publisher: OUP Oxford
ISBN: 0191018856
Category : Law
Languages : en
Pages : 360
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Book Description
This new edition of Unjust Enrichment by the editor of the Clarendon Law Series, is a fully updated, clear and concise account of the law of unjust enrichment. It attempts to move away from the use of obscure terminology inherited from the past. This text is the first book to insist on the switch from restitution to unjust enrichment, from response to event. It organises modern law around five simple questions: Was the defendant enriched? If so, was it at the claimant's expense? If so, was it unjust? The fourth question is then what kind of right the claimant has, and the fifth is whether the defendant has any defences. This second edition was revised and updated by Peter Birks before his death from cancer on 6 July 2004 at the age of 62. It represents the final thinking of the world's leading authority on the subject.
Author: Andrew Kull
Publisher: Aspen Publishing
ISBN: 9781543800906
Category : Law
Languages : en
Pages : 0
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Book Description
Restitution is a body of law that has immense practical value and wide application to disputes of all sorts. Simply put, it is the set of rules that govern recovery of gains that a party should not keep—or “unjust enrichment,” as it is formally called; and unjust enrichment occurs every day in both private and commercial transactions. Restitution has the dual distinction of being one of the most useful but overlooked bodies of law, due to its lack of study by several generations of modern lawyers. Without a single casebook in print on the subject, it has been nearly impossible to teach restitution law in the past. Restitution and Unjust Enrichment: Cases and Notes fills that void and presents the substance, remedies and history of restitution in a practical and interesting manner. Professors and students will benefit from: The only casebook available for teaching this important and interesting subject, and the first new one in 50 years. A modern reworking of the topic that adopts the framework of Publication of Restatement Third, Restitution and Unjust Enrichment (2011) (“R3RUE”) for teaching purposes. A complete discussion of Restitution, which is part of the required curriculum for students who receive legal training in other parts of the common-law world. Authorship by leading scholars in the field. Andrew Kull was the sole Reporter for R3RUE, published in two hardcover volumes. Ward Farnsworth is the author of a convenient treatise on Restitution, published by the University of Chicago Press in 2014. He is also co-author of the Wolters Kluwer casebook Torts: Cases and Questions, currently in its second edition.
