Is the Law of Contract Seriously Defective if the Court is Unable to Award Restitutionary Damages for Breach of Contract?
It is commonly believed that the general rule is that damages for breach of contract are compensatory not restitutionary. So, the damages are measured by the loss to the plaintiff not by the gain to the defendant. However, there are many academic writings which have advocated that restitutionary damages should be available as general default rule in breach of contract, because it is able to provide adequate remedy to plaintiff when compensatory damages are inadequate. The A-G vs. Blake is the remarkable case which embodied by Hendrix case, posits the general restitutionary remedy. Blake has challenged the traditional approach of damages and signaled a trend of establishing restitutionary damages. The proponents of this point always purport ‘the interests of justice’ for plaintiff, however, they misunderstand the purpose of law of contract which is to balance the interests between claimant and defendant so that to maximize the social profits. Accordingly, the restitutionary damages are an objection to efficient breach in economic view because the restitution and account of profit (disgorgement) will deprive the defendant’s incentive to maximize profits and the claimant’s desire to minimize loss. So, the virtue of damages for breach of contract would be diminished if the general restitution relief is established.
Key Words: Restitutionary damages; Compensatory damages; Freedom of contract; Efficient breach
- There are currently no refbacks.
If you have already registered in Journal A and plan to submit article(s) to Journal B, please click the CATEGORIES, or JOURNALS A-Z on the right side of the "HOME".
We only use four mailboxes as follows to deal with issues about paper acceptance, payment and submission of electronic versions of our journals to databases: email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org
Copyright © Canadian Academy of Oriental and Occidental Culture (CAOOC)
Address:758, 77e AV, Laval, Quebec, H7V 4A8, Canada
Telephone: 1-514-558 6138