Restitutionary Damages as Corrective Justice

Theoretical Inquiries in Law, Vol. 1, No. 1, 2000

38 Pages Posted: 26 Sep 2008

See all articles by Ernest J. Weinrib

Ernest J. Weinrib

University of Toronto - Faculty of Law

Date Written: January 1, 2000

Abstract

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gains from the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties.

Suggested Citation

Weinrib, Ernest J., Restitutionary Damages as Corrective Justice (January 1, 2000). Theoretical Inquiries in Law, Vol. 1, No. 1, 2000. Available at SSRN: https://ssrn.com/abstract=1273346

Ernest J. Weinrib (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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