Comparing Compensatory Damages in Tort and Contract: Some Problematic Issues

2011 ◽  
Author(s):  
Andrew Stephen Burrows
Keyword(s):  
Compensatory Damages

Tort Liability

2017 ◽  
Author(s):  
Richard Adelstein
Keyword(s):  
Class Action ◽  
Corrective Justice ◽  
External Costs ◽  
Tort Liability ◽  
Compensatory Damages

Torts are involuntary seizures of entitlements of a certain kind in a particular exchange environment, and tort liability attempts to ensure that tortfeasors compensate their victims for the costs these takings impose. Liability is the law’s answer to externality. It doesn’t seek to deter torts absolutely, but to control them through the principle of corrective justice, which separates efficient from inefficient torts by liability prices and deters only the latter. This chapter examines how these involuntary exchanges are governed by tort liability to do corrective justice and imperfectly completed through individual and class action tort suits for compensatory damages. Tort liability is shown to effectively encourage efficient torts, in which the value of the unlawful cost imposition to the tortfeasor exceeds the external costs of the tort, and thus provide a means to move entitlements to higher-valuing owners in an environment of involuntary takings by private takers.

Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs

2009 ◽  
Vol 22 (1) ◽  
pp. 49-78 ◽  
Author(s):  
Francesco Giglio
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Dual Theory ◽  
Judicial Decision ◽  
Legal Response ◽  
First Case ◽  
The Law ◽  
Compensatory Damages ◽  
Single Response

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

scholarly journals New Zealand's Workers' Compensation: How Will it Fare in a Changing Environment?

1970 ◽  
Author(s):  
Nadine McDonnell
Keyword(s):  
New Zealand ◽  
Current System ◽  
Injured Workers ◽  
Workers Compensation ◽  
Working Environments ◽  
Accident Compensation ◽  
Tort System ◽  
Compensatory Damages ◽  
The Right ◽  
Safe Working

The Woodhouse Report and the subsequent 1972 Accident Compensation Act was revolutionary. The right to sue to recover compensatory damages arising directly or indirectly out of personal injury was abolished, although there was still the provision to take an action for damages in a court outside of New Zealand. Since then, workers’ compensation in New Zealand has evolved and metamorphosed into our current scheme. However, the effectiveness of workers' compensation schemes in terms providing protecting injured workers and their dependents has been eroded over the years. This paper not only provides a brief background to the current system but also explores the notion that if the current workers’ compensation scheme is failing New Zealand workers, perhaps it is time to look at other alternatives. In particular, the tort system of law may afford workers fairer compensation and may spur employers to provide healthy and safe working environments.

scholarly journals ’PARLO…’: A CATALAN VOICE FROM THE HOLOCAUST: WRITER AND SURVIVOR OF MAUTHAUSEN JOAQUIM AMAT-PINIELLA SHATTERS FRANCOIST MANDATED SILENCE

2007 ◽  
Vol 21 (1) ◽  
pp. 69-86
Author(s):  
Maureen Tobin Stanley
Keyword(s):  
Affective Responses ◽  
Concentration Camps ◽  
Fictional World ◽  
Nazi Occupation ◽  
The Holocaust ◽  
Compensatory Damages ◽  
Sense Of Justice ◽  
Poetic Work

Following the retreat to France of half a million Spaniards in the winter of ’38/39 and as a result of the Nazi occupation, 10,000-15,000 Spaniards were deported to concentration camps. Among them was the writer Joaquim Amat-Piniella (1913-1974). His novel K.L. Reich, whose title alludes to the stamp impressed on all objects within the Nazi Reich’s concentration camps, creates a fictional world that reflects the realities within Mauthausen. That author writes in a draft (without date), that with this story his wish was not to focus on the horrors, but rather to document (“manar un record”), and to relate the historical catastrophes of “cruelty, misery, suffering, but also hope.” His poetic work Les llunyanies (The Far Away Lands) also reveals what Amat denoted as his “white hour,” an awakening of conscience and consciousness, the insistence on what is human and humane precisely because he was able to endure four and a half years of brutality. In addition to his novel and poetry, Amat-Piniella’s political efforts following his liberation promoted the reconciliarion that resulted from a sense of justice. With his poetry, this native of Manresa expressed the gamut of his affective responses to Mauthausen. With K.L. Reich, Amat-Piniella gives voice to the Republicans whose exile led to a concentrationary sentence. With his activism, he did everything possible to vindicate the ex-prisoners and obtain for them their due “indemnización” (compensatory damages) and thus overcome the obstacles imposed by the repressive forces. In spite of numerous hurdles, Amat was triumphant.

Complete Contract Law

2021 ◽  
Author(s):  
André Naidoo
Keyword(s):  
Contract Law ◽  
Third Party ◽  
And Performance ◽  
Unfair Terms ◽  
Compensatory Damages

This book provides choice extracts, supported by clear commentary and useful learning features. The text starts with an introduction to contract law. Part I looks at creating the contract, with coverage of the offer, acceptance, the legal partnership, and consideration and promissory estoppel. Part II is about the content of the contract and performance. It looks at the terms of the contract, exemption clauses, and unfair terms and issues related to breach and termination of the contract. Part III is about enforcement of the contract. It considers compensatory damages following a breach as well as third-party rights and non-compensatory remedies. Part IV explains the facts that end a contract such as misrepresentation, duress, frustration, and mistake.

Form of compensatory damages, date for assessment, taxation

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
General Rule ◽  
Breach Of Contract ◽  
Lump Sum ◽  
Future Loss ◽  
Compensatory Damages ◽  
Assault And Battery

The general rule can be expressed as follows: a court must assess in a lump sum all past, present, and future loss resulting from the particular tort or breach of contract being sued for, because no damages can be later given for a cause of action on which judgment has already been given. The classic authority is Fitter v Veal, where the claimant had been awarded £11 damages against the defendant in an action for assault and battery. His injuries proved to be more serious than at first thought and he had to undergo an operation on his skull. It was held that he could not recover for this further loss in a new action.

Part VIII Remedies For Default, 28 Damages

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Breach Of Contract ◽  
Compensatory Damages ◽  
Compensatory Measure

The rules governing compensatory damages for breach of contract are complicated and at times difficult to apply precisely. This chapter considers those doctrines in detail: including the different `measures’ of compensation, and the defences of causation, remoteness, mitigation, etc. The paradigm measure of compensatory damages for breach of contract is the so-called ‘expectation’ or ‘loss of bargain’ species. Here the aim is to place the innocent party in the position in which he would have been if the contract had been properly performed. That aim cane be achieved notably by recovering the profits he had expected to gain under the contract. But where loss of profit cannot be easily proved, a ‘fall-back’ compensatory measure is reliance loss damages. These restore the innocent party monetarily to the position he enjoyed before the contract was breached, thus enabling him to recover his wasted expenditure.

16. Remedies I: compensatory damages

2018 ◽  
Author(s):  
Janet O’Sullivan
Keyword(s):  
Financial Loss ◽  
Breach Of Contract ◽  
The Core ◽  
Contributory Negligence ◽  
The Subject ◽  
Compensatory Damages

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on compensatory damages, the principal remedy for breach of contract, and explores the actionable types of loss. It deals with the various measures of damages, how they are quantified, and discusses the circumstances in which the claimant can recover for non-financial loss. It explores principles of causation and the remoteness of damage test for breach of contract, the requirement of mitigation and the defence of contributory negligence.

29. Remedies beyond compensatory damages

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Breach Of Contract ◽  
Legitimate Interest ◽  
Specific Performance ◽  
Equitable Relief ◽  
Compensatory Damages

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving him of his profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform his contract. Injunctions can either prevent a person from breaching his contract (prohibitory injunctions) or force a person to comply with his contract (mandatory injunctions).

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