Author: Caprice L. Roberts Publisher: ISBN: Category : Languages : en Pages : 36
Book Description
The muse of restitution enraptures the world's legal scholars. Yet America resists her lure. This article focuses on an American black-letter law endeavor to follow the Commonwealth's lead on restitutionary disgorgement as a remedy for contractual breach - Section 39 of the pending Restatement (Third) of Restitution and Unjust Enrichment. England's Attorney General v. Blake opens the door to the remedy. America's Restatement Section 39 steps through the door. It does so with much timidity despite its bold title, quot;Profit Derived from Opportunistic Breach.quot; Though narrowly bounded, Section 39's sweeping foundation is in tension with the American Holmesian model of contractual choice and efficient breach theory.This author's other scholarship casts the Restatement's recognition of a restitutionary disgorgement remedy for opportunistic breach as potentially revolutionary for contract law because the remedy focuses on defendant's mindset and gains rather than plaintiff's loss. Further, the remedy seeks to deter if not punish wrongdoing. A well-developed, canon of scholarship and precedent on restitutionary disgorgement exists in Australia, Canada, Great Britain, Ireland, and New Zealand. The Commonwealth experience should guide America's adoption of restitutionary disgorgement for contractual breach.America should embrace restitution's riddles. We should call restitution to our imagination. The Restatement proposal for restitutionary disgorgement advances unjust enrichment theory and merits serious scholarly attention, praise, and critique. It will admirably extend the stable of alternative remedies for contract plaintiffs. But, let's be honest about its shortcomings as drafted and its underlying morality-infused rationale. Then, we can glean the deeper lessons from the Commonwealth's lead and appreciate the consequences of our new path.
Author: Caprice L. Roberts Publisher: ISBN: Category : Languages : en Pages : 43
Book Description
A quiet revolution is underway. A new rule proposed in the forthcoming Restatement (Third) of Restitution seeks to deter conscious wrongdoers from retaining profits from quot;opportunisticquot; breaches of contract. The proposed disgorgement remedy for defendant's opportunistic breach of contract will have fundamental consequences for contract theory and practice. This contractual remedy is gain-based rather than compensatory. Restitutionary disgorgement, rooted in unjust enrichment, may shift the conventional paradigm of contract law. This article examines whether a restitutionary disgorgement remedy for certain breaches of contract is compatible with traditional contract principles such as Justice Holmes's choice principle. Recall his oft-repeated declaration, quot;The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, - nothing else.quot; Disgorgement calls for certain value choices, including moral blameworthiness and promise-keeping. Furthermore, the underlying rationale for disgorgement is in tension with efficient breach theory. This article assesses whether disgorgement can coexist with conventional contract theories, and, if not, whether disgorgement's values should be preferred. Ultimately, restitutionary disgorgement for opportunistic breach of contract is a promising development for contract law and restitutionary theory. There is, however, room for further refinement before the ink is dry on the pending Restatement.
Author: Daniel Zatorski Publisher: Springer Nature ISBN: 303125452X Category : Law Languages : en Pages : 169
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: C Mitchell Publisher: Bloomsbury Publishing ISBN: 1847316956 Category : Law Languages : en Pages : 269
Book Description
It is now well established that the law of unjust enrichment forms an important and distinctive part of the English law of obligations. Restitutionary awards for unjust enrichment and for wrongdoing are clearly recognised for what they are. But these are recent developments. Before the last decade of the twentieth century the very existence of a separate law of unjust enrichment was controversial, its scope and content matters of dispute. In this collection of essays, a group of leading scholars look back and reappraise some of the landmark cases in the law of restitution. They range from the early seventeenth century to the mid-twentieth century, and shed new light on some classic decisions. Some argue that the importance of their case has been overstated; others, that it has been overlooked, or misconceived. All persuasively invite the reader to think again about some well-known authorities. The book is an essential resource for anyone, scholar, student or practitioner, with an interest in this fascinating area of the law.
Author: C. Bradford Biddle Publisher: Cambridge University Press ISBN: 1108426751 Category : Business & Economics Languages : en Pages : 379
Book Description
Through a collaboration among twenty legal scholars from North America, Europe and Asia, this book presents an international consensus on the use of patent remedies for complex products such as smartphones, computer networks, and the Internet of Things. This title is also available as Open Access on Cambridge Core.
Author: Graham Virgo Publisher: Cambridge University Press ISBN: 1316764559 Category : Law Languages : en Pages : 625
Book Description
The law of commercial remedies raises a number of important doctrinal, theoretical and practical controversies which deserve sustained and rigorous examination. This volume explores such controversies and suggests solutions, which is essential to ensure that the law is defensible, clear and just. With contributions from twenty-three leading academic and practitioner experts, this book addresses significant issues in the law which, taken together, range across the entire remedial jurisdiction as it applies to commercial disputes. The book primarily focuses on the resolution of controversies in the English law of commercial remedies, but recent developments elsewhere are also considered, especially in other common law jurisdictions. The result provides remarkably comprehensive coverage of the field which will be of relevance to academics, students, judges and practitioners.
Author: Antony W. Dnes Publisher: Edward Elgar Publishing ISBN: 1788977742 Category : Business & Economics Languages : en Pages : 224
Book Description
Teaching Essentials of Law and Economics provides an up to date and succinct account of the application of economic analysis to legal doctrines, institutions and legal reform.
Author: Andrew S. Burrows Publisher: Oxford University Press ISBN: 0199296529 Category : Law Languages : en Pages : 789
Book Description
This highly-praised textbook provides detailed and incisive coverage of all aspects of restitution. The author's expert analysis and clarity of style will be invaluable to both students and practitioners with an interest in this area of law.
Author: Djakhongir Saidov Publisher: Bloomsbury Publishing ISBN: 1847314333 Category : Law Languages : en Pages : 530
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: Caprice L. Roberts
Author: Caprice L. Roberts
Author: Daniel Zatorski
Author: 
Author: C Mitchell
Author: C. Bradford Biddle
Author: Graham Virgo
Author: Antony W. Dnes
Author: Andrew S. Burrows
Author: Djakhongir Saidov