By Katy Barnett
This publication 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 rules and instances in agreement legislation. notwithstanding, 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 very important methods. Courts also are interested by vindication of the claimant's functionality curiosity, and it's pivotal that the claimant can procure a replacement functionality through an award of damages or particular aid. The booklet argues that disgorgement damages may be to be had 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 occasion; and 'agency challenge' situations, the place the defendant offers the claimant he'll now not do a undeniable factor, and the claimant reveals it tricky to oversee the functionality. additionally, disgorgement can be complete or partial, and 'reasonable rate damages' for breach of agreement are most sensible understood as partial disgorgement instead of 'restitutionary damages.' Equitable bars to aid must also be followed with regards to disgorgement damages, as may still allowances for ability and energy. Accounting for revenue for Breach of agreement may be of curiosity to agreement and advertisement legal professionals, and it'll be particularly priceless to an individual with an curiosity in agreement treatments and restitution. The e-book attracts on case legislation in a couple of universal legislations jurisdictions, essentially England, Wales, and Australia. (Series: Hart reports in inner most legislations)
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Additional info for Accounting for Profit for Breach of Contract. Theory and Practice
Of course, this may depend on the nature of the contract. In fiduciary contracts the beneficiary generally would obtain the profit but for the breach, since it was the fiduciary’s duty to make the profit for the beneficiary. Nonetheless, in the vast majority of ordinary contracts, this argument perpetuates a fiction, and disgorgement damages cannot be regarded as compensatory without adopting a concept of ‘loss’ which is so broad as to be practically meaningless. It suffers from a lack of coherence in that the concept of ‘loss’ adopted lacks consistency and intelligibility.
36 Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 562–63. 37 Wrotham Park (n 34) 811. 38 Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 563. 39 See, eg M McInnes, ‘Gain, Loss and the User Principle’ (2006) 14 Restitution Law Review 76, 84–86. 40 Tamares (Vincent Square) Ltd v Fairpoint  EWHC 212 (Ch). 41 Cunnington, ‘The Assessment of Gain-Based Damages’ (n 29) 563. 42 Accordingly, disgorgement damages for breach of contract cannot be justified according to a compensatory rationale because they do not compensate for a factual loss.
See B McFarlane, The Structure of Property Law (Oxford, Hart Publishing, 2008). 22 Rationales Behind Disgorgement Damages well as an ownership right in any action of Bert’s that is incompatible with A. Consequently, where A is a particular action and where Bert’s doing B is incompatible with his doing A, then Alice is entitled by way of damages to any profits realized by Bert as a result of doing B. 72 Again, as with Benson’s analysis, in many cases it is difficult to argue that the claimant would have been entitled to recoup the gain the defendant made if the contract had been performed, unless, as mentioned previously, the contract was a fiduciary one.