Gain-based damages : contract, tort, equity and intellectual property
著者
書誌事項
Gain-based damages : contract, tort, equity and intellectual property
Hart, 2002
- : hbk
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注記
Bibliography: p. [265]-273
Includes indexes
内容説明・目次
内容説明
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.
目次
- 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?.
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