Gain-Based Damages


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It is presented in a way which is designed to be easily accessible for students and practitioners who are n Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the work by the same authors, which examined the developing law of unjust enrichment in Australia.

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The refinement of the authors' think Each step in the argument follows convincingly from the previous one. And the force of recent case law, in particular the seminal House of Lords decision in Attorney-General v Blake where disgorgement damages for breach of contract were awarded , only serves to strengthen the argument.

The nature of "damages": damages as compensation - arguments that damages must be compensatory, counter-arguments; legitimacy of exemplary damages - their purpose, their operation, answering objections; beyond exemplary damages. The category of civil wrongs: wrongs at common law and in equity - the meaning of "tort", civil wrongs and criminal wrongs; the nature of a wrong - the conduct relied upon as a breach of duty, distinguishing wrongs from other events, identifying wrongs. Two measures of gain-based damages: restitutionary damages and disgorgement damages - restitutionary damages, disgorgement damages, other uses of "disgorgement" and "restitution"; the need to distinguish restitutionary damages and disgorgement damages - different rationales and availability, when both remedies are concurrently available, confusion without the use of two terms; distinguishing gain-based damages from other awards; remoteness of damages.

Torts: restitutionary damages - different labels, indebitatus assumpsit, explicit modern recognition in six cases, obstacles; disgorgement damages - different labels, obstacles. Breach of contract: disgorgement damages - the Blake litigation, objections; restitutionary damages - the meaning of restitutionary damages; restitutionary damages in the Blake case, restitutionary damages in the United States, restitutionary damages distinguished from other remedies, objections to restitutionary damages; other breaches of promise.

Equitable wrongs: the equitable wrongs - breach of trust and fiduciary duty, dishonest participation in a breach of fiduciary duty, breach of confidence, fraud; restitutionary damages - breach of fiduciary duty, dishonest participation in breach of fiduciary duty, breach of confidence, fraud; disgorgement damages - breach of fiduciary duty, dishonest participation in a breach of fiduciary duty, breach of confidence, fraud.

Imagine that A commits a wrong against B and B sues in respect of that wrong. A will certainly be liable to pay compensation to B. If B seeks compensation then the court award will be measured by reference to the loss that B has suffered as a result of A's wrongful act. However, in certain circumstances it will be open to B to seek restitution rather than compensation. It will be in his interest to do so if the profit that A made by his wrongful act is greater than the loss suffered by B.

Whether or not a claimant can seek restitution for a wrong depends to a large extent on the particular wrong in question. For example, in English law, restitution for breach of fiduciary duty is widely available but restitution for breach of contract is fairly exceptional.

Disgorgement of Profits: Gain-Based Remedies Throughout the World |

The wrong could be of any one of the following types:. Notice that 1 - 5 are all causative events see above. The law responds to each of them by imposing an obligation to pay compensatory damages. Restitution for wrongs is the subject which deals with the issue of when exactly the law also responds by imposing an obligation to make restitution.

In Attorney General v Blake , [6] an English court found itself faced with the following claim. The claimant was undoubtedly entitled to claim compensatory damages but had suffered little or no identifiable loss.

It therefore decided to seek restitution for the wrong of breach of contract. The claimant won the case and the defendant was ordered to pay over his profits to the claimant. However, the court was careful to point out that the normal legal response to a breach of contract is to award compensation. An order to make restitution was said to be available only in exceptional circumstances. Cases of intentional torts or breaches of fiduciary duty often allow for claims of unjust enrichment, as well as cases of statutory torts and breaches of contract. A plaintiff can even have a claim in unjust enrichment when there is no other substantive claim.

The Uniform Commercial Code "UCC" entitles a buyer who defaults restitution of the buyer's deposit to the extent it exceeds reasonable liquidated damages or actual damages. Terminating contracts—how and when a contract ends—overview. At the outset of considering whether to bring a claim for breach of contract, it is essential to determine whether the relevant limitation period has expired.

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If it has, the claim will be 'statute barred' and you may be prevented from bringing a claim. Under the Limitation Act LA , a claim for breach of contract must be brought no later than six years from the date on which the cause of action accrued s 5. The date when the 'cause of action' accrued is not when the damage is suffered, but when the contract was actually breached Gould v Johnson For example, in an action for breach of warranty or condition against a seller of goods, the cause of action accrues when the goods are delivered, and not when the defect is discovered at a later date Battley v Faulkner For further guidance on limitation issues in contract claims, see Practice Note: Limitation—contract claims.

Where a contract is made by two or more parties it may contain a promise or obligation made by two or more of those parties.

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Any such promise may be:. Whether an undertaking is joint, several, or joint and several in contract is a question of construction and is dependent on the intention of the parties as evidenced in the contract. Determining who is liable for the obligation will be a relevant factor in determining who to sue, the discharge of any liability and issues of contribution in relation to such liability. For further guidance, see Practice Note: Joint, several, and joint and several liability. It is relatively common for a party to have sought to exclude or in some way limit the scope of their potential liability under the contract.

Issues of the exclusion or limitation of liability arise in both business and consumer contracts and are dealt with both under the common law and the statutory provisions of the Unfair Contract Terms Act UCTA and the Consumer Rights Act CRA For further guidance on structuring and negotiating a standard limitation of liability clause in a commercial contract, and issues relating to indirect and consequential loss, loss of profits, loss of revenue, loss of savings and similar types of financial loss, see Practice Note: Exclusion and limitation of liability.

Damages are an award of money made to compensate a claimant who has suffered loss or damage as a result of a wrong for which the defendant is responsible. In this way, they are distinguishable from the remedy available in a claim based on unjust enrichment, which is concerned with an unjustified gain by the defendant independently of whether the latter is a wrongdoer. For further guidance on the general principles of damages, see Practice Note: The remedy of damages—general principles. The normal function of damages for breach of contract is the same as that in tort, namely, compensatory.

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Gain-Based Damages

The aim being to compensate the true loss suffered by the innocent party and place them in the same position, so far as money can do it, as if the contract had been performed. There are, however, exceptional circumstances where the court may depart from this general policy and award some greater sum, such as in cases of an award of gain-based damages.

Thus the overriding aim of an award of damages arising from a breach of a contractual obligation is to put the innocent party 'so far as money can do it…in the same situation…as if the contract had been performed' Robinson v Harman [—60]. This differs from tort, where the aim is to put the injured party in the same position they would have been in if the tort had not occurred. Note: unlike many torts, a breach of contract is actionable per se, therefore, in principle, a claimant who proves a breach, even if he proves no recoverable loss at all, is entitled at least to a nominal award.

For guidance on the general principles of recovering damages for contractual breach, starting with this compensatory function and the different kinds of damages for pecuniary and non-pecuniary losses, as well as nominal damages, damages under the Sale of Goods Act , default damages clauses, contractual mechanisms for dealing with breach and interest on damages, see Practice Note: Contractual damages—general principles. Sometimes parties to a contract will have agreed, as a term of the contract, the damages payable on its breach. These are known as liquidated damages clauses and have proved a fertile area for debate as to whether the clause in question is enforceable as a liquidated damages clause or unenforceable for being a penalty.

Although not limited to causes of action based in contract, one of the more difficult areas for determining whether or not losses are recoverable are in respect of damages said to be occasioned by the loss of a chance, particularly where the likelihood of that chance gaining a benefit or avoiding a loss is dependent, at least in part, on the hypothetical actions of an independent third party. For further guidance on this area of recovery, see:. Practice Note: Loss of chance damages. Negotiating damages previously sometimes known as Wrotham Park damages are damages which are assessed by reference to the sum that the claimant could reasonably have charged for releasing the defendant from the obligation which the latter failed to perform the hypothetical release.

That may be the position where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset.


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The defendant has taken something for nothing, for which the claimant was entitled to require payment. Their assessment involves an imaginary negotiation as a tool to arrive at the economic value of the right breached. The decision in One Step should now limit when an award of negotiating damages is appropriate.

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