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Sender:
Jason Neyers
Date:
Fri, 23 Nov 2007 13:19:24 -0500
Re:
Deceit: damages and account

 

It’s been awhile since I thought about this in detail but as I remember the/a corrective justice view (Weinrib, "Restitutionary Damages as corrective justice"), gain-based remedies are available where the content of the plaintiff's right includes the right to a gain. Without such an entitlement, the fact that the defendant causally made a gain following the violation of my right is irrelevant -- I am entitled to have my means restored not someone else's. So gain-based remedies are essentially available only in property tort situations because the right to property includes the right to the use, fruits and abuse of it and in situations where the wrongdoer basically has sold my right treated as property (as in the fiduciary duty situation where the wrongdoer has sold out their the duty of loyalty).

  

Cheers,

Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

  

Duncan Sheehan (LAW) wrote:

Speaking (or maybe writing) as one who does in large measure accept that the disgorgement measure reflects corrective justice, I'd be interested to know what Jason thinks the reasons why fraud doesn't support it are. I can't immediately think of them, so I too will line up with Charles & Lionel.

On Abbots v Barry, I think the only answer is doesn't it depend on your view of unjust enrichment. If, unlike me, you accepted Peter's explanation in his last book of interceptive subtraction, would you not say that the possession of the wine carried with it earnings opportunities and therefore the sale proceeds could also be taken by unjust enrichment? In any case not being familiar with the case, was X D's agent, and if so wouldn't that make a difference?


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