Gain-Based Damages: Contract, Tort, Equity and Intellectual PropertyBloomsbury 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. |
מתוך הספר
תוצאות 6-10 מתוך 73
עמוד
... principle constantly employed is that like events and responses should be treated alike.3 This requires that language and nomenclature should not obscure the true nature of particular events or the law's response to them. This is the ...
... principle constantly employed is that like events and responses should be treated alike.3 This requires that language and nomenclature should not obscure the true nature of particular events or the law's response to them. This is the ...
עמוד
... principles other than compensating for loss, the focus will be upon a simpler, less contested and better known example. This is the remedy of exemplary damages: an award of damages which, it is universally acknowledged, is expressly not ...
... principles other than compensating for loss, the focus will be upon a simpler, less contested and better known example. This is the remedy of exemplary damages: an award of damages which, it is universally acknowledged, is expressly not ...
עמוד
... principle”7 or even as an absolute rule, a “principle that is absolutely firm, and which must control all else.”8 2) Counter-arguments If it were correct, as an absolute proposition, that damages are only concerned with compensating for ...
... principle”7 or even as an absolute rule, a “principle that is absolutely firm, and which must control all else.”8 2) Counter-arguments If it were correct, as an absolute proposition, that damages are only concerned with compensating for ...
עמוד
... principle”. Lord Nicholls, in the leading speech22 stated that “the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this [compensatory] principle would not do ...
... principle”. Lord Nicholls, in the leading speech22 stated that “the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this [compensatory] principle would not do ...
עמוד
... principle of damages” which is to compensate for loss.62 Ironically, as will be seen below, Lord Scott acknowledged the need for non-compensatory awards in cases where a defendant has committed a wrong with a view to material gain ...
... principle of damages” which is to compensate for loss.62 Ironically, as will be seen below, Lord Scott acknowledged the need for non-compensatory awards in cases where a defendant has committed a wrong with a view to material gain ...
מהדורות אחרות - הצג הכל
Gain-Based Damages: Contract, Tort, Equity and Intellectual Property <span dir=ltr>James Edelman</span> תצוגה מקדימה מוגבלת - 2002 |
Gain-Based Damages: Contract, Tort, Equity and Intellectual Property <span dir=ltr>James Edelman</span> אין תצוגה מקדימה זמינה - 2002 |
מונחים וביטויים נפוצים
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 Clarendon Press Oxford common law compensation compensatory damages considered Court of Appeal damages and disgorgement damages award defendant defendant’s deterrence disgorgement damages dishonest efficient breach equitable wrongs equity exemplary damages fiduciary duty fraud gain-based damages Homfray House of Lords injunction innocent knowing assistance knowing receipt Law of Restitution law of unjust law of wrongs legitimate interest liability Lloyds Rep Lord Goff Lord Nicholls loss Ltd above note market value Maxwell London measure Millett misrepresentation patent plaintiff principle proprietary award recognised remedy requirement rescission restitutionary damages reverse text accompanying note tort trade mark infringement transaction transfer of value trespass unjust enrichment value transferred wrongdoing