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Lionel Smith
Fri, 23 Nov 2007 15:07:32 -0500
Deceit: damages and account


But Jason, I don’t think I said it was vacuous or without content, and I don’t think I said ‘property-like’. I said ‘property’ has lots of meanings, and then I picked one.

My objections are not only to your email but to Professor Weinrib’s arguments, in the article you mention and his more recent one on disgorgement for breach of contract. I still don’t see that the distinction between ‘property’ and ‘other rights’, with fiduciary obligations on the side of ‘property’, has been justified as a basis for determining the availability of gain-based remedies for infringements.

Rules about fruits are answers to a similar question, namely the scope of the rights. But first, the answer to who gets non-wrongfully-generated fruits does not tell us what should happen in the case of infringements; we are talking about the results of infringement, not claims to enforce a primary right. The Kentucky Caves case would not be controversial if the defendant had simply taken apples from the plaintiff’s tree. Secondly, it is arguable that the holder of a personal right is sometimes entitled to fruits. But that is a long story, depending partly on what fruits are in this context, which perhaps belongs better to the FVDG (Fruit and Vegetable Discussion Group).




On 23/11/07 14:20, "Jason Neyers" wrote:


I'm not sure "property-like" is a concept that is vacuous or without content, and in any event Weinrib deals with this possible objection in the corrective justice paper for those that are interested.

I had always thought that it was the nature of acquisition which set apart property and gave its owner the entitlement to the use, fruit and abuse: because after acquisition it is now their means/thing. I would add also that the property owner is entitled to the gain/fruits even without a breach by anyone, so the entitlement comes from the primary right not the secondary right; so the explanation is not as question-begging as Lionel makes it appear.

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