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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: 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: 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: Sebastian Röder Publisher: GRIN Verlag ISBN: 3656821240 Category : Law Languages : en Pages : 34
Book Description
Master's Thesis from the year 2010 in the subject Law - Comparative Legal Systems, Comparative Law, grade: B+, University of Auckland, course: Remedies for breach of contract, language: English, abstract: In the now famous Blake case the majority in the House of Lords has granted a (restitutionary) remedy for a breach of contract which has been alien to the law of contract so far. Although it was held to be available only in exceptional circumstances the judgment prompted Lord Hobhouse to express the following warning in his dissenting opinion: "If some more extensive principle of awarding non compensatory damages for breach of contract is to be introduced into our commercial law, the consequences will be very far-reaching and disruptive." It is the goal of this essay to examine whether Lord Hobhouse’s fear of a silent reconceptualisation of the law of contract is justified. In order to fully understand the potential impact of the Blake case it is vital to bring oneself to mind what the law of contract was before the judgement in Blake was rendered. Accordingly the essay will start with an outline as to which remedies were and in fact still are available to a claimant under the pre-Blake law. After a summary of the Blake case itself, it will be described why a broad Blake remedy indeed might have a revolutionary effect on the conventional law of contract. However, – as history shows – not all revolutions are bad. Thus, even if Blake should have far-reaching and disruptive consequences on the law of contract it is by no means said that this is an undesirable result. It should be borne in mind that the law of contract is a default system that provides remedies for a breach of contract in case the parties did not – unconsciously or deliberately – stipulate their own remedies which they are free to do. Ideally this default system leads to just and economically reasonable results. By this measure a default system has to prove its value and practicability. Thus, if it turns out that a law of contract under which the Blake remedy is generally available is superior to the current law its implementation must not be declined only because of its revolutionary character. Part IV of this essay draws the necessary comparison between the two alternatives in terms of economic efficiency. In doing so special attention is given to what is called the “efficient breach theory”, which is often called upon to defend the current contractual rules. The essay will then conclude with a final assessment as to what the contract of law should be like in the author’s opinion.
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: Matthew W. Finkin Publisher: Edward Elgar Publishing ISBN: 1781000131 Category : Law Languages : en Pages : 504
Book Description
Economic pressure, as well as transnational and domestic corporate policies, has placed labor law under severe stress. National responses are so deeply embedded in institutions reflecting local traditions that meaningful comparison is daunting. This bo
Author: Douglas Laycock Publisher: Oxford University Press, USA ISBN: 0195063562 Category : Equitable remedies Languages : en Pages : 375
Book Description
The irreparable injury rule says that courts will not grant an equitable remedy to prevent harm if it would be adequate to let the harm happen and grant the legal remedy of money damages. After surveying more than 1400 cases, Laycock concludes that this ancient rule is dead--that it almost never affects the results of cases. When a court denies equitable relief, its real reasons are derived from the interests of defendants or the legal system, and not from the adequacy of the plaintiff's legal remedy. Laycock seeks to complete the assimilation of equity, showing that the law-equity distinction survives only as a proxy for other, more functional distinctions. Analyzing the real rules for choosing remedies in terms of these functional distinctions, he clarifies the entire law of remedies, from grand theory down to the practical details of specific cases. He shows that there is no positive law support for the most important applications of the legal-economic theory of efficient breach of contract. Included are extensive notes and a detailed table of cases arranged by jurisdiction.
Author: Eyal Zamir Publisher: Oxford Handbooks ISBN: 0199945470 Category : Business & Economics Languages : en Pages : 841
Book Description
'The Oxford Handbook of Behavioral Economics and Law' brings together leading scholars of law, psychology, and economics to provide an up-to-date and comprehensive analysis of this field of research, including its strengths and limitations as well as a forecast of its future development. Its twenty-nine chapters are organized into four parts.
Author: Orlin Yalnazov Publisher: Springer ISBN: 3658243856 Category : Law Languages : en Pages : 350
Book Description
Should laws be made in courts or in parliaments? Orlin Yalnazov proposes a new approach to the problem. He conceptualizes law as an information product, and law-making as an exercise in production. Law-making has inputs and outputs, and technology is used to transform one into the other. Law may, depending on input and technology, take on different forms: it can be vague or it can be certain. The ‘technologies’ between which we may choose are precedent and statute. Differences between the two being sizeable, our choice has significant repercussions for the cost of the input and the form of the output. The author applies this framework to several problems, including the comparison between the common and the civil law, comparative civil procedure, and EU law. Perhaps most critically, he offers a critique of the ‘efficiency of the common law’ hypothesis.
Author: Caprice L. Roberts
Author: Caprice L. Roberts
Author: Caprice L. Roberts
Author: Sebastian Röder
Author: 
Author: C Mitchell
Author: 
Author: Matthew W. Finkin
Author: Douglas Laycock
Author: Eyal Zamir
Author: Orlin Yalnazov