Download Accounting for Profit for Breach of Contract. Theory and by Katy Barnett PDF

By Katy Barnett

This booklet defends the view that an award of an account of gains (or 'disgorgement damages') for breach of agreement will occasionally be justifiable, and it suits in the orthodox ideas and circumstances in agreement legislations. in spite of the fact that, there's a few confusion as to while such an award will be made. the ethical bases for disgorgement damages are deterrence and punishment, which form the treatment in vital methods. Courts also are excited about vindication of the claimant's functionality curiosity, and it truly is pivotal that the claimant can procure a replacement functionality through an award of damages or particular aid. The ebook argues that disgorgement damages may be on hand in different types of case: 'second sale' situations, 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 grants the claimant he'll no longer do a definite factor, and the claimant reveals it tricky to oversee the functionality. in addition, disgorgement might 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 when it comes to disgorgement damages, as should still allowances for ability and energy. Accounting for revenue for Breach of agreement might be of curiosity to agreement and advertisement legal professionals, and it'll be specially invaluable to a person with an curiosity in agreement treatments and restitution. The publication attracts on case legislations in a few universal legislations jurisdictions, essentially England, Wales, and Australia. (Series: Hart experiences in deepest legislation)

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Additional info for Accounting for Profit for Breach of Contract. Theory and Practice

Sample text

The question remains whether disgorgement damages are truly substitutive. They are not a substitute for performance in the same way that expectation dam ibid. ibid 70. 84 Stevens cites Alfred McAlpine Construction Ltd v Panatown Ltd [2000] UKHL 43, [2001] 1 AC 518 (HL) where the court was divided as to whether to award substitutive damages for breach of contract. The case was complicated by the fact that the undertaking to take reasonable skill and care in constructing the building in question had been given to a party other than the party who had entered into the building contract with the defendant.

In this way, it differs from substitutive compensation, which seeks to objectively compensate the claimant for the infringement of a right. See Stevens (n 13) 60–61. 91 D Kennedy, ‘Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power’ (1982) 41 Maryland Law Review 563, 587.

There is an overlap between some reasonable fee cases and some cases of skimped performance, because the defendant could be said to have saved himself the expense of paying a fee to the claimant for release from his obligation. The ‘reasonable fee’ is also the expense saved. However, we should reject the suggestion of the Court of Appeal in Blake that ‘restitutionary damages’ are ‘simpler and more open’,21 and thus represent the remedy of choice in cases of skimped performance. In most cases of skimped performance, it is still possible to put the claimant in a position as if the contract had been performed by an award of damages.

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