Disgorgement — From Property to Contract

University of Toronto Law Journal, Forthcoming

LSE Legal Studies Working Paper 18/2015

27 Pages Posted: 18 Sep 2015 Last revised: 17 Dec 2015

See all articles by N. W. Sage

N. W. Sage

London School of Economics - Law Department

Date Written: September 16, 2015

Abstract

The article develops an understanding of the disgorgement remedy in private law by moving between the proprietary context, where the remedy has long been awarded, and the contractual context, where the remedy is relatively new and still controversial. The resulting account can explain the emerging common law on disgorgement for breach of contract, which has so far eluded explanation. The account also has broader implications for private law theory. First, it suggests that asking whether the plaintiff has a right ‘to a thing’ (the paradigmatic sort of property right) may obscure the remedial analysis. Instead, the analysis should attend to another, hitherto overlooked aspect of the plaintiff’s rights: their logical scope. Second, the account suggests that a purely ‘rights-based’ understanding of private law remedies cannot adequately explain disgorgement, because it elides the crucial role that the defendant’s wrongful action plays in the explanation for the remedy.

Keywords: Property, Contract, Disgorgement, Restitution, Unjust Enrichment

Suggested Citation

Sage, Nicholas W., Disgorgement — From Property to Contract (September 16, 2015). University of Toronto Law Journal, Forthcoming; LSE Legal Studies Working Paper 18/2015. Available at SSRN: https://ssrn.com/abstract=2661638

Nicholas W. Sage (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

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