Disgorgement of Profits for Breach of Contract: A Comparative Analysis

2003 ◽  
Vol 7 (1) ◽  
pp. 27-59 ◽  
Author(s):  
Mathias Siems
Keyword(s):  
Common Law ◽  
Attorney General ◽  
German Law ◽  
Legal Systems ◽  
Breach Of Contract ◽  
House Of Lords ◽  
Similarities And Differences ◽  
Compensatory Damages ◽  
Unjustified Enrichment ◽  
Legal Concepts

This article considers whether a contract-breaker is obliged not only to pay compensatory damages but also to disgorge to the innocent party the profits obtained from breach of contract. After an introduction to the topic, the approach of the courts in Common Law jurisdictions will be outlined. The main focus will be on English Law and the decision of the House of Lords in Attorney General v Blake, althoughjudgmentsfrom other countries will also be mentioned. Thereafter thefocus will be upon Germany as an example ofa Civil Lawjurisdiction. The German law of contract, negotiorum gestio and unjustified enrichment will be examined as to their ability to award disgorgement. The mixed legal systems of Israel, Louisiana and Scotland will also be studied. The similarities and differences between the different legal systems will then be compared and interpreted. In particular, the article will consider common starting points, exceptions and new legal concepts, as well as differences injudicial decision-making and in thefreedom to draft contractual terms. Finally, it will be contended that disgorgement ofthe benefits resultingfrom a breach ofcontract should in principle be awarded. Moreover, this should not be restricted to certain cases. It is necessary only that the gains should be attributable to breach of contract.

Interest as damages and interest on damages

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Breach Of Contract ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Compensatory Damages ◽  
Compound Interest

The law on interest in English law is a tangled web. This is principally because the common law traditionally set itself against awards of interest and this has resulted in the piecemeal intervention of statutes which allow the award of interest in specific situations. In the leading modern case of Sempra Metals Ltd v IRC the House of Lords reformed the common law as regards awards of interest as compensatory damages for a tort or breach of contract (although the part of the decision that was concerned with interest as restitution of an unjust enrichment, which was the direct claim in question, was overruled by the Supreme Court in Prudential Assurance Co Ltd v HMRC). Sempra Metals was concerned with an award of compound interest (as damages or as restitution) which contrasts with the relevant statutes which allow awards of simple interest only.

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

A Corrective Justice Account of Disgorgement for Breach of Contract by Analogy to Fiduciary Remedies

2016 ◽  
Vol 29 (1) ◽  
pp. 149-190
Author(s):  
Anthony Robert Sangiuliano
Keyword(s):  
Attorney General ◽  
Fiduciary Duty ◽  
Third Party ◽  
Corrective Justice ◽  
Alternative Account ◽  
Breach Of Contract ◽  
House Of Lords ◽  
The Uk ◽  
Contractual Rights ◽  
Do So

A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords inAttorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.

Comparative Contract Law

2006 ◽  
pp. 898-936 ◽  
Author(s):  
E. Allan Farnsworth
Keyword(s):  
Common Law ◽  
German Law ◽  
Contract Law ◽  
Legal Systems ◽  
The European Union ◽  
European Contract ◽  
American Law ◽  
The Common ◽  
General Contract Law ◽  
European Contract Law

This article presents an overview of comparative contract law. It reveals a number of differences between civilian legal systems and the common law, and also between French and German law as two main exponents of the civil-law tradition and, to some extent, even between English and US-American law. The same is true of other major issues in the field of general contract law that have not been touched upon. But there is a gradual convergence. This convergence is due to developments in all of the four legal systems covered in this article: English, US-American, French, and German law. And it has enabled scholars from around the world to elaborate an international restatement of contract law (the UNIDROIT Principles of International Commercial Contracts) and scholars from all the member states of the European Union to formulate a restatement of European contract law (the Principles of European Contract Law).

scholarly journals Legal comparative analysis of the Roman societas and the contemporary civil law partnership in Polish and German law

2018 ◽  
Vol 22 (2) ◽  
pp. 29-34
Author(s):  
Cezary August Małozięć
Keyword(s):  
Comparative Analysis ◽  
Civil Law ◽  
German Law ◽  
Common Origin ◽  
Legal Systems ◽  
External Relations ◽  
Similarities And Differences ◽  
Civil Codes ◽  
Digest Of Justinian

The paper presents legal comparative analysis of the Roman societas and the contemporary civil law partnership in Polish and German law. The author analyses the origins and essence of a civil law partnership, then describes similarities and differences of internal and external relations between the partners of a civil law partnership. The analyzed sources are: the Institutes of Gaius, the Digest of Justinian, and Polish and German Civil Codes. The author stresses that the structure of the contemporary civil law partnership in Polish and German legal systems is still very similar to the Roman societas, mainly because of its common origin.

scholarly journals Mental Distress Damages for Breach of Contract

2004 ◽  
Vol 35 (3) ◽  
pp. 687
Author(s):  
Renee Holmes
Keyword(s):  
Mental Distress ◽  
Common Law ◽  
Breach Of Contract ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
Sound Policy

The common law has long held that damages for the mental distress suffered after a breach of contract are unrecoverable. Like all rules, a range of exceptions has developed to mitigate the severity of this rule. In this article the author argues that both the rule and its exceptions, being based neither in principle nor sound policy, have only created confusion in the law. The decision of the House of Lords in Farley v Skinner is analysed as a possible solution to this confusion, but is found to be unhelpful. The author concludes by calling for a principled revision of this area of the law in accordance with the usual principles of damages.

1 Abuse of Rights in National Legal Systems and International Law

2020 ◽  
Author(s):  
El Far Ahmed
Keyword(s):  
International Law ◽  
General Principle ◽  
Common Law ◽  
German Law ◽  
Essential Elements ◽  
Uniform Method ◽  
Legal Systems ◽  
Legal Basis ◽  
Swiss Law ◽  
The Common

This chapter discusses the principle of abuse of rights and its application in national legal systems and in international law. To determine if abuse of rights constitutes a general principle of law, its recognition must first be examined in the different legal systems in order to establish its generality and then subsequently one must distil the concept to its essential elements. This is necessary to determine if there is a need to modify its conditions of application in order to make it suitable for the particularities of international arbitration. The chapter then looks at the application of the principle in civil legal systems: mainly in French law, German law, Swiss law, Louisiana Law, and Egyptian law. It also considers the recognition, or lack thereof, of abuse of rights in the common law legal systems and in international law. The omnipresence of the principle of abuse of rights in civil legal systems is evident. However, the ubiquity of the principle does not necessarily reflect a uniform legal basis of the principle’s existence, or a uniform method of how it is utilized to prevent an abuse of right.

Roman Law in England Before the Time of Bracton

1975 ◽  
Vol 15 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Ralph V. Turner
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Law Students ◽  
Roman Law ◽  
Legal Systems ◽  
Norman Conquest ◽  
English Law ◽  
Legal Concepts ◽  
The Impact ◽  
To Receive

In Maitland's words, “Of all the centuries the twelfth was the most legal.” It was a time of growth for the great legal systems in the West: English common law, revived Roman law, and canon law. Students of medieval England have rarely concerned themselves with the question of the connection between these legal systems. For six centuries, from Bracton until the rise of modern legal history with Maitland, the study of English law was insular, ignoring the continental legal systems. When a seventeenth-century civilian wrote that “our common law, as we call it, is nothing else than a mixture of the Roman and the feudal,” he aroused the anger of Coke and the common lawyers. Recently scholars have taken such a view more seriously, and a number of studies have sought Roman or canonistic influences on English law. It might be useful, then, to reconsider the matter of the impact of Rome on English law in the light of recent scholarship, asking three questions: To what extent was Roman law known and studied in England before the time of Bracton? What influences, if any, do scholars find that it had on the legal innovations of Henry II and his sons? Why did the English fail to ‘receive’ Roman law in the way that countries on the Continent did?Any influence of Roman law in England during the centuries after the withdrawal of Roman legions and before the Norman Conquest can be dismissed quickly. Once Christianity was re-introduced to the island, the revival of Roman Law, or at least of some notion of Roman legal concepts, was possible.

11. Remedies Part III: Non-compensatory Remedies

2021 ◽  
pp. 340-376
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Breach Of Contract ◽  
Unjust Enrichment ◽  
Specific Performance ◽  
The Common ◽  
Compensatory Damages

This chapter identifies some alternative, exceptional remedies that could be available to an innocent party following a breach of contract. Generally, they can only be used when an award of compensatory damages would for some reason not be adequate or is unavailable. The chapter starts with specific performance and injunctions. Both remedies were developed in equity rather than the common law. This means that their application is largely discretionary and so the chapter looks at the factors that could be relevant to the exercise of that discretion. It then turns briefly to the remedy of restitution for unjust enrichment. While this is a different area of law, it can provide a remedy where there was thought to have been a contract but it turns out there was not one. In certain circumstances, it could also provide a remedy following a breach. A basic grasp of this area will also help to understand the very exceptional ‘restitution for a wrong’ remedy. Finally, the chapter considers the remedy of negotiating damages as well as agreed damages clauses.

RESTITUTIONARY DAMAGES TO DETER BREACH OF CONTRACT

2001 ◽  
Vol 60 (1) ◽  
pp. 1-58 ◽  
Author(s):  
David Fox
Keyword(s):  
Attorney General ◽  
Monetary Incentive ◽  
Breach Of Contract ◽  
House Of Lords ◽  
Contractual Rights

“THE essence of contract is performance”. So argued Professor Daniel Friedmann in discussing the rationale of remedies for breach of contract ((1995) 111 L.Q.R. 628, 629). The House of Lords’ decision in Attorney-General v. Blake [2000] 3 W.L.R. 625 lends new support to this view. It holds that a claimant’s interest in performance of his contractual rights may, exceptionally, entitle him to recover restitutionary damages from the defaulting party. Measured by the defendant’s gain from the breach, rather than the claimant’s expectation or reliance loss, restitutionary damages transfer to the claimant the profit that the defendant makes by his wrong. Failing any other adequate remedy for the claimant, liability to restitutionary damages encourages the defendant to perform his duty by depriving him of the monetary incentive to commit a breach.

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