Cookies?
Library Header Image
LSE Research Online LSE Library Services

Pacta Sunt Servanda: Contrasting Disgorgement Damages with Efficient Breaches under Article 74 CISG

Eicher, Florence (2018) Pacta Sunt Servanda: Contrasting Disgorgement Damages with Efficient Breaches under Article 74 CISG. LSE Law Review. pp. 29-43. ISSN 2516-4058

[img]
Preview
Text - Published Version
Download (340kB) | Preview
Identification Number: 10.21953/lse.1zg1ackw80we

Abstract

The contractual remedy of disgorgement damages has increasingly gained acceptance in international legal practice. Disgorgement of profits can result from a situation in which contractual breach is incentivised due to its financial superiority, ie profitability, over the proper fulfilment of the initial contract. In this situation, the aggrieved party can raise a claim for disgorgement damages, meaning it can claim the profits that the breaching party has made as a result of the breach. This differs from compensatory damages focusing solely on the loss of the aggrieved party. The calls for acceptance of disgorgement damages as an acceptable remedy under the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) specifically do not only stem from emerging international case law, but disgorgement as an applicable remedy under Article 74 CISG is also supported by leading CISG scholars such as Ingeborg Schwenzer and Pascal Hachem. This paper analyses the recoverability of disgorgement damages under Article 74 CISG, including an assessment of possible additional requirements a prima facie case needs to fulfil for the remedy to apply. The affirmative view to the applicability of disgorgement damages will be contrasted with the opposing concept of efficient breach.

Item Type: Article
Official URL: https://www.lselawreview.com/
Additional Information: © 2018 The Authors
Divisions: LSE
Subjects: K Law > K Law (General)
Sets: Collections > LSE Law Review
Date Deposited: 29 May 2018 11:27
Last Modified: 20 Aug 2019 23:02
URI: http://eprints.lse.ac.uk/id/eprint/88094

Actions (login required)

View Item View Item

Downloads

Downloads per month over past year

View more statistics