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Gain-based Damages


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Table of Contents

Introduction. The nature of "damages": damages as compensation - arguments that damages must be compensatory, counter-arguments; legitimacy of exemplary damages - their purpose, their operation, answering objections; beyond exemplary damages. The category of civil wrongs: wrongs at common law and in equity - the meaning of "tort", civil wrongs and criminal wrongs; the nature of a wrong - the conduct relied upon as a breach of duty, distinguishing wrongs from other events, identifying wrongs. Two measures of gain-based damages: restitutionary damages and disgorgement damages - restitutionary damages, disgorgement damages, other uses of "disgorgement" and "restitution"; the need to distinguish restitutionary damages and disgorgement damages - different rationales and availability, when both remedies are concurrently available, confusion without the use of two terms; distinguishing gain-based damages from other awards; remoteness of damages. Torts: restitutionary damages - different labels, indebitatus assumpsit, explicit modern recognition in six cases, obstacles; disgorgement damages - different labels, obstacles. Breach of contract: disgorgement damages - the Blake litigation, objections; restitutionary damages - the meaning of restitutionary damages; restitutionary damages in the Blake case, restitutionary damages in the United States, restitutionary damages distinguished from other remedies, objections to restitutionary damages; other breaches of promise. Equitable wrongs: the equitable wrongs - breach of trust and fiduciary duty, dishonest participation in a breach of fiduciary duty, breach of confidence, fraud; restitutionary damages - breach of fiduciary duty, dishonest participation in breach of fiduciary duty, breach of confidence, fraud; disgorgement damages - breach of fiduciary duty, dishonest participation in a breach of fiduciary duty, breach of confidence, fraud. Intellectual property wrongs: history of the different intellectual property wrongs - copyright and design infringement, passing off and trade mark infringement, patent infringement; restitutionary damages - infringement of copyright and design rights, passing off and trade mark infringement, patent infringement; restitutionary damages for innocent infringement - copyright and design right infringements, patent infringement, passing off and trade mark infringement; disgorgement damages - generally, copyright and design infringement passing off and trade mark infringement, infringement of patent. Conclusions: election - the governing principle, disgorgement damages and restitutionary damages, disgorgement damages and compensatory damages, restitutionary damages and compensatory damages, exemplary damages; proprietary claims - the problem, two types of gain-based proprietary awards, a principle governing the award of both gain-based proprietary awards?.

About the Author

James Edelman was a lecturer at St Edmund Hall, Oxford and now researches and teaches at the University of Western Australia.


...a thought-provoking account of an exceedingly difficult aspect of the law of remedies provides ample food for thought and deserves appropriate attention. Sarah Worthington, London School of Economics Trust Law International April 2002 ...the book is carefully cited and easily navigable it is worthy both as a guide for practitioners and resource for academics. the logic with which Dr Edelman presents his case for recognition of gain-based damages for civil wrongs is appealing. Each step in the argument follows convincingly from the previous one. And the force of recent case law, in particular the seminal House of Lords decision in Attorney-General v Blake (where disgorgement damages for breach of contract were awarded), only serves to strengthen the argument. Michael Rush, Magdalen College, Oxford Australian Bar Review November 2002

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