Damages Measured by the Benefit to the Defendant

CIAJ 2009 Annual Conference

TAKING REMEDIES SERIOUSLY - LES RECOURS ET LES MESURES DE REDRESSEMENT: UNE AFFAIRE SÉRIEUSE - CANADIAN INSTITUTE FOR THE ADMINISTRATION OF JUSTICE - INSTITUT CANADIEN D'ADMINISTRATION DE LA JUSTICE, p. 203, 2009

18 Pages Posted: 18 Feb 2012 Last revised: 25 Feb 2012

See all articles by Gordon Cameron

Gordon Cameron

affiliation not provided to SSRN

Date Written: 2009

Abstract

The generalized formulations for damages in tort and contract law are framed in conventional compensatory terms. In these formulations, the conception of “compensation” is either (in tort) restorative — put the plaintiff in the position that the plaintiff would have been in if the tort had not been committed; or (in contract) predictive — put the plaintiff in the position that the plaintiff would have been if the contract had been performed. In both cases, the objective can be described as putting the plaintiff in the position she would have been in, but for the wrong. Neither of these generalized formulations is premised on a benefit that the defendant has derived from the breach.

In the common law (that is to say, the merged rules of law and equity) there are several ways in which the law ignores the position of the defendant when determining the appropriate remedy, including measuring damages. For example, the defendant might have been more injured by his negligence or breach of contract than the plaintiff, but the law will not concern itself with this fact.

What might be seen as the matching converse principle is that the law typically does not, when assessing damages, concern itself with how much the defendant has benefited from a tort or, especially, a breach of contract. The topic of a damages assessment is the plaintiff’ loss from the breach of his rights, not the defendant’s gain.

There are times, however, when ignoring a defendant’s gain — especially where the plaintiff cannot show a loss in the conventional sense and thus would be without a remedy, or an adequate remedy — offends our sense of justice. As a result, the common law has developed a variety of ways of reflecting the fact of a defendant’s gain in the calculation of an award of damages or, as will be explored further below, by granting the plaintiff access to the defendant’s gain through an order for specific relief: an injunction or specific performance.

Keywords: Justice, legal remedies, law, Canadian, Canada, CIAJ, ICAJ, Canadian Institute for the Administration of Justice, Institut canadien d’administration de la justice

Suggested Citation

Cameron, Gordon, Damages Measured by the Benefit to the Defendant (2009). CIAJ 2009 Annual Conference, TAKING REMEDIES SERIOUSLY - LES RECOURS ET LES MESURES DE REDRESSEMENT: UNE AFFAIRE SÉRIEUSE - CANADIAN INSTITUTE FOR THE ADMINISTRATION OF JUSTICE - INSTITUT CANADIEN D'ADMINISTRATION DE LA JUSTICE, p. 203, 2009, Available at SSRN: https://ssrn.com/abstract=2006545

Gordon Cameron (Contact Author)

affiliation not provided to SSRN ( email )

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