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Disgorgement: from property to contract

Sage, Nicholas W. (2016) Disgorgement: from property to contract. University of Toronto Law Journal, 66 (2). pp. 244-272. ISSN 0042-0220

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Identification Number: 10.3138/UTLJ.3205


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 is fairly uncontroversial, and the contractual context, where the remedy is relatively new and still poorly understood. 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.

Item Type: Article
Official URL:
Additional Information: © 2015 University of Toronto Press. This paper was originally released as Working Paper 18/2015 as part of the LSE Law, Society and Economy series.
Divisions: Law
Subjects: K Law > K Law (General)
Sets: Departments > Law
Date Deposited: 22 Sep 2015 14:32
Last Modified: 20 Jul 2021 02:29

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