The Missing Remedy: Restoration Damages for Dark Patterns and Other Precontractual Manipulations

Abstract

Manipulation in contractual negotiations - whether through deception, undue pressure, marketing ploys, or digital "dark patterns" - undermines bargaining integrity and distorts the terms of the resulting contract. Courts recognize these tactics as wrongful, yet existing remedies often fail to provide adequate redress. The prevailing approaches - compensating victims for out-of-pocket losses or the lost benefit of the bargain - remain confined to the terms of the executed contract or aim at undoing the transaction altogether. In doing so, they overlook a critical consequence of manipulation: beyond altering the agreed terms it often prevents a different, more favorable transaction from materializing. 

This Article introduces restoration damages, a remedy designed to compensate victims for the profits they would have secured in a negotiation untainted by manipulation. Restoration damages aim to put the victim of manipulation in the monetary position they would have occupied without the manipulation. 

Restoration damages should take precedence when they offer greater recovery than traditional measures. Beyond ensuring full compensation for victims, recognizing this remedy is vital for advancing optimal deterrence, particularly in digital markets where manipulation is sophisticated, pervasive, and often escapes regulation. The article establishes the theoretical foundation for restoration damages, examines their role within existing remedial law, and provides a structured framework for their assessment and implementation.

Keywords: Misrepresentation, Fraud, Duress, Dark Patterns, Restoration Damages, Contracts, Torts, Private Law Remedies, Economic Analysis of Law, Legal Theory