Contract Theory and Gain-Based Recovery: A Review of Katy Barnett, Accounting for Profit for Breach of Contract: Theory and Practice

Oxford: Hart Publishing, 2012

29 Pages Posted: 16 Apr 2015

See all articles by David Winterton

David Winterton

University of New South Wales (UNSW) - UNSW Law & Justice

Date Written: April 15, 2015

Abstract

In Accounting for Profit for Breach of Contract: Theory and Practice, Dr Barnett attempts to explore systematically the circumstances in which such gain-based relief for breach of contract both is and should be available. Rather than focussing on the book’s strengths, this article seeks to examine two important theoretical questions raised by her account. The first concerns its theoretical foundations. Not only does Barnett invoke a highly contestable theory of contractual rights that does not meaningfully advance her argument, she also fails to explain whether the various normative considerations invoked to support her theory are mutually compatible, and therefore whether her account satisfies her self-imposed criterion of ‘coherence’. A second, related, question Barnett’s account raises is whether disgorgement for contractual breach is ever justifiable. Like others, Barnett claims that profit-stripping for breach of contract is justified by considerations of ‘deterrence’ and ‘retribution’. But this common view is often too quickly assumed because there are good reasons to doubt whether these two rationales, either separately or in combination, are capable of justifying disgorgement as a response to contractual breach.

Keywords: disgorgement, contract theory, coherence, deterrence, retribution, desert

Suggested Citation

Winterton, David, Contract Theory and Gain-Based Recovery: A Review of Katy Barnett, Accounting for Profit for Breach of Contract: Theory and Practice (April 15, 2015). Oxford: Hart Publishing, 2012, Available at SSRN: https://ssrn.com/abstract=2591221

David Winterton (Contact Author)

University of New South Wales (UNSW) - UNSW Law & Justice ( email )

UNSW
Kensington
Sydney, New South Wales 2052
Australia

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