Accounting for Profit for Breach of Contract. Theory and - download pdf or read online
By Katy Barnett
This booklet 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 circumstances in agreement legislation. even if, there's a few confusion as to whilst such an award could be made. the ethical bases for disgorgement damages are deterrence and punishment, which form the treatment in vital methods. Courts also are fascinated 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 aid. The booklet argues that disgorgement damages will 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' instances, the place the defendant offers the claimant he'll no longer do a undeniable factor, and the claimant reveals it tricky to oversee the functionality. in addition, disgorgement could be complete or partial, and 'reasonable rate 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 may still allowances for ability and energy. Accounting for revenue for Breach of agreement can be of curiosity to agreement and advertisement attorneys, and it'll be specially invaluable to someone with an curiosity in agreement treatments and restitution. The publication attracts on case legislation in a few universal legislations jurisdictions, essentially England, Wales, and Australia. (Series: Hart experiences in inner most legislations)
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Extra info for Accounting for Profit for Breach of Contract. Theory and Practice
However, courts also seek to acknowledge the claimant’s right, prevent the conduct from occurring again at the hands of that defendant or any other defendants (general and specific deterrence) and punish the defendant for failing to respect the claimant’s right (retribution). 3 Professors Chapman and Trebilcock identify three potential rationales which may underlie awards of punitive damages: S Smith, Contract Theory (Oxford, Oxford University Press, 2004) 5. As do Dr Witzleb and Professor Carroll: see N Witzleb and R Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 Tort Law Review 16, 17–19.
Professor McInnes has argued that disgorgement damages are compensating for a lost right: see M McInnes, ‘Account of Profits for Common Law Wrongs’ in S Degeling and J Edelman (eds), Equity in Commercial Law (Pyrmont, NSW, Lawbook Co, 2004) 416–18; M McInnes, ‘Gain, Loss and the User Principle’ (2006) 14 Restitution Law Review 76, 84–86. ’ in R Cunnington and D Saidov (eds), Contract Damages: Domestic and International Perspectives (Oxford, Hart Publishing, 2008) 165, 173; Rotherham, ibid 44–45.
Implicitly accepted in Jaggard v Sawyer  1 WLR 268 (CA) 291 (Millett LJ); Gafford v Graham (1999) 77 P & CR 73 (CA) 86 (Nourse LJ); WWF – World Wide Fund for Nature v World Wrestling Federation Entertainment Inc  EWCA Civ 286,  1 WLR 445 (CA)  (Chadwick LJ). See criticisms of WWF in R Cunnington, ‘A Lost Opportunity to Clarify’ (2007) 122 LQR 47; R Cunnington, ‘The Measure and Availability of Gain-Based Damages for Breach of Contract’ in D Saidov and R Cunnington (eds), Contract Damages: Domestic and International Perspectives (Oxford, Hart Publishing, 2008) 207, 221; C Rotherham, ‘ “Wrotham Park Damages” and Accounts of Profits’  LMCLQ 25, 36–55.
Accounting for Profit for Breach of Contract. Theory and Practice by Katy Barnett