Gain-Based Damages: Contract, Tort, Equity and Intellectual Property
Bloomsbury Publishing, 19 באפר׳ 2002 - 320 עמודים
On July 27,2000 the House of Lords delivered a decision where, for the first time in English law, it explicitly recognised that damages for civil wrongs can be assessed by reference to a defendant (wrongdoer)'s gain rather than a claimant's loss. The circumstances in which such gain-based damages might be available were left for development incrementally.
This book considers the nature of gain-based damages and explains when they have historically been available and why, and provides a framework for appreciating the operation of such damages awards. The first part of the book justifies the existence of these damages, which focus upon a defendant wrongdoer's gain made as a result of a civil wrong, explaining the nature and need for such a remedy and the scope of civil wrongs. The core thesis of the book is that two different forms of such gain-based damages exist: the first is concerned with restitution of a defendant's gains wrongfully transferred from a claimant; the second is concerned only with stripping profits from the defendant's hands. Once these two gain-based damages awards are separated they can be shown to be based upon different rationales and the basis for their availability can be easily understood.
The second part of the book considers and applies this approach, demonstrating its operation throughout the cases of civil wrongs. The operation of the two forms of gain-based damages is demonstrated in cases in the area of tort (chapter 4), contract (chapter 5), equitable wrongs (chapter 6) and intellectual property wrongs (chapter 7). It is shown that these gain-based damages awards have long been available in these areas and their operation has conformed to clear principle. The difficulty that has obscured the principle is the nomenclature which has hidden the true gain-based nature of many of these damages awards.
מה אומרים אנשים - כתיבת ביקורת
לא מצאנו ביקורות במקומות הרגילים
מהדורות אחרות - הצג הכל
account of profits action in unjust argued Attorney award of restitutionary Blake above note breach of contract breach of duty breach of fiduciary cause of action claim claimant common law compensation compensatory damages considered Court of Appeal damages and disgorgement damages award defendant defendant’s deterrence disgorgement damages dishonest equitable wrongs equity exemplary damages fiduciary duty fraud gainbased damages Homfray House of Lords injunction innocent knowing assistance knowing receipt Kuddus Law Commission Law of Restitution law of wrongs legitimate interest liability Lloyds Rep Lord Millett Lord Nicholls loss Ltd above note market value measure misrepresentation patent plaintiff principle proprietary award Pty Ltd recognised remedy rescission restitutionary damages reverse specific performance text accompanying note tort trade mark infringement transaction transfer of value trespass United Australia unjust enrichment value transferred Virgo Restitution wrongdoing