III RESTITUTION FOR WRONGS

GENERAL PRINCIPLES

THE ESSENCE OF RESTITUTION FOR WRONGS

In Part II those restitutionary claims which are founded on the reversal of the defendant’s unjust enrichment were examined. In this Part the emphasis shifts to those restitutionary claims which are founded on the commission of a wrong by the defendant. There are four types of wrongdoing which may trigger the award of gain-based remedies, namely tort, breach of contract, equitable wrongdoing, and the commission of a criminal offence. For the purposes of this book the detailed rules which determine whether or not a wrong has been committed will not be examined, since this is adequately dealt with in the specialized works on each of these subjects. What this Part is concerned with is whether, once the claimant has established that the defendant has committed a wrong, the claimant can obtain a gain-based remedy from the defendant. This is a difficult matter to resolve, since there is great uncertainty as to which wrongs can and should trigger the award of gain- based remedies. A further difficulty is that, unlike restitution founded on the reversal of the defendant’s unjust enrichment where the only remedy available is restitutionary, in those cases where restitution is founded on the commission of a wrong the claimant may be able to obtain other remedies in the alternative, particularly remedies to compensate the claimant for loss suffered rather than to deprive the defendant of gains obtained through the commission of the wrong.

 
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