Ernest J. Weinrib

in The Idea of Private Law

Published in print September 2012 | ISBN: 9780199665815
Published online January 2013 | e-ISBN: 9780191748622 | DOI:

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In Aristotle's presentation of corrective justice, the correlativity of gain and loss is the organizing feature of liability. This chapter deals with what this correlativity means and how these gains and losses can be identified and seen as expressions of Kantian right. Two aspects of gain and loss must be distinguished: the factual and the normative. The gains and losses of corrective justice are normative rather than factual. They are correlative when the justificatory considerations at work are unifying, bipolar, and expressive of the parties' transactional equality. The Kantian conception of right and duty satisfies these requirements. This chapter explores the relationship between the normative and the factual and between rights and welfare. It concludes by applying the correlativity of right and duty to the reparation of tort and contract losses and to the restitution of gains.

Keywords: correlativity; gain and loss; right and duty; welfare; tort; contract; restitution

Chapter.  13831 words. 

Subjects: Jurisprudence and Philosophy of Law

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