Gain-based Damages

Ernest J. Weinrib

in Corrective Justice

Published in print September 2012 | ISBN: 9780199660643
Published online January 2013 | e-ISBN: 9780191748288 | DOI:

Series: Oxford Legal Philosophy

Gain-based Damages

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This chapter applies the framework of corrective justice to gain-based damages for torts. Such damages ought to be available only insofar as they correspond to a constituent element of the injustice that the defendant has done to the plaintiff. The radical proposal that allows gain-based damages for any wrongful gain is unsatisfactory because it fails to link the damages to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gains from the defendant's use of alienation. The chapter continues with a discussion of the relevance of the wrongdoer's wilfulness and concludes with the treatment of situations where, although the plaintiff's interest is not strictly speaking a proprietary one, the analysis of the property cases nonetheless applies.

Keywords: gain-based damages; wrongful gains; property; tort

Chapter.  12983 words. 

Subjects: Jurisprudence and Philosophy of Law

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