I am extremely proud to announce that my book has been published today. Here is the little summary from the publisher’s website:
This book defends the view that an award of an account of profits (or ‘disgorgement damages’) for breach of contract will sometimes be justifiable, and fits within the orthodox principles and cases in contract law. However there is some confusion as to when such an award should be made. The moral bases for disgorgement damages are deterrence and punishment, which shape the remedy in important ways. Courts are also concerned with vindication of the claimant’s performance interest, and it is pivotal in these cases that the claimant cannot procure a substitute performance via an award of damages or specific relief.
The book argues that disgorgement damages should be available in two categories of case: ‘second sale’ cases, where the defendant breaches his contract with the claimant to make a more profitable contract with a third party; and ‘agency problem’ cases, where the defendant promises the claimant he will not do a certain thing, and the claimant finds it difficult to supervise the performance. Moreover, disgorgement may be full or partial, and ‘reasonable fee damages’ for breach of contract are best understood as partial disgorgement rather than ‘restitutionary damages’. Equitable bars to relief should also be adopted in relation to disgorgement damages, as should allowances for skill and effort.
This book will be of interest to contract and commercial lawyers, and will be especially valuable to anyone with an interest in contract remedies and restitution. It draws on case law in a number of common law jurisdictions, primarily England and Wales, and Australia.
It is available from the publishers, Hart Publishing, and through other online book sellers (eg, Amazon, Book Depository).
Longtime readers of the blog may be pleased to know that the blog gets a guernsey in my Foreword – and there is even a thanks to all the bloggers and readers who have supported me through this process.
It may appear dry, but in its defence, there are many interesting cases discussed, including ones involving Elvis’ gold plated piano, Jimi Hendrix’s bootleg recordings, the war between the WWFs (wildlife fund vs wrestlers) and spies who published unauthorised memoirs.
30 Comments
Congratulations!
Congratulations! It’s a very handsome volume.
Very, very well done LE!! What a fine achievement to wake up to this morning!
Wow, a book so quickly after your PhD — you must be unstoppable! Some of those topics might be of interest to people looking at moral psychology incidentally. Off topic, I like the little Hart Publishing deer.
Hart is an old English word for ‘deer’ — hence all the pubs called ‘The White Hart’, but is also the surname of HLA Hart, arguably the greatest ever jurisprudential thinker, and former Principal of my college, Brasenose.
That is SO COOL!!!l. Congratulations, Katy. Well done.
Does the blurb mean that you have gone for “claimant” and “defendant” rather than “promisee” and “promisor”?
Marcellous, yes, I’ve gone for the English style (because it’s an English publisher). Of course, a promisee is not necessarily a claimant, which makes it complex. For that reason, there’s lots of promisees and promisors sprinkled throughout too.
Congratulations that’s a great effort and you must be deservedly proud!
I’ve always found the “promisee/promisor” terminology rather confusing, even though in theory there is nothing complicated about it at all. Likewise, I often see people stumble over “mortgagor/mortgagee.”
Congrats on the book, by the way. That subtitle “Theory and Practice” suggests a certain dynamic tension, and I’ll be interested to see how you resolve it.
Congrats
I do like the “Hart Studies in Private Law” sounds sort of like a bit of LawNerdPorn with a sexy title like that.
May I also suggest that the cover is a particularly fetching colour?
marcellous@10 I know exactly what you mean re ee/or. And I also get the same feeling any time I accidentally hover over SL’s gravatar – which in part says “graduated from Oxford and used to practice”.
That should be ‘well used’ or otherwise ‘s’, I always think – but am never really sure
You’re correct – the verb form takes ‘s’. However, every time I inserted ‘s’ and saved it, the website would change it back to ‘c’. The alternative was to leave it as it was when I was living in Rocky, and I’d just spent hours figuring out how to get into the website that lets you use those ‘hovercards’. I came perilously close to putting my foot through my laptop, decided it wasn’t worth it (I would have to buy another one) and gave up.
I have now forgotten how I got in there in the first place, so I can’t even change the image – I haven’t owned the husky in the graphic since 2006 – let alone update the words, which once they become factually wrong, will stay that way forever.
There is a reason I hate computers and only use them under sufferance.
SL I do apologise. We pedants must take succour where we can, being incapable of resolving such matters as famine, war, or pestilence. But getting away from Australian politics, I do agree it is a very Royal pretty impressive pink. (Insert commas where considered appropriate – nothing physical, now)
And I’m particularly looking forward to understanding LE’s view on the treatment of profits in prospect – i.e. what is ‘lost’ by the claimant.
I’m not sure one should call that ‘pink’. The members of a certain state’s rugby league team may object, for a start…
Congratulations LE, publishing a book is a great achievement! (And here I was feeling accomplished for just getting my assignment in on time
I think I’ll be covering contract remedies next semester, so maybe I’ll be able find a good reason to cite you as an authority.
SL@16 I call it pink because, as a Mexican, I cannot decide between ‘maar-oon’ or ‘maar-own’. Which matters not, because they are bound to lose to maintain the tv ratings for the third match.
Whatever. It certainly has Ripples umm.. rippling.
LE – what premium for a personal hand-written dedication? I’d be pleased to pay for something a little more up-market than “Piss off you idiot”. Even something like “We use the same alphabet, but thereafter part company” would suffice
Marcellous and SL, I also have problems with promisee and promisor – but sometimes there’s no alternative.
When I was an Articled Clerk at Freehills, I once accidentally interchanged the names of the chargee and chargor. On OVER ONE HUNDRED ASIC CHARGE FORMS. Erm.
Thank you all. Am still rather stoked. Imagine how I shall be once the books actually arrive in my hot little hands.
I have to say the colour would make it stand out amongst my current collection of law books which is 60% black and 40% white. At least my engineering books managed to have a few blues and greens.
Given the mexicans have lost the last 6 series, you can’t blame the fact they keep getting maar-owned on some ratings conspiracy. I mean even wikipedia can tell we’re going to win again and has already coloured in this year’s result.
I think I can beat that: forgetting to compound the interest when calculating quantum in a multi-party claim.
And I’m sure you all know how, in mathematics — when you make a mistake early on in a calculation — it just gets shittier and shittier all the way down the line…
Life. You’re standing in it.
Desipis@21 – I was persistent re colour. At first they wanted bright red – that was a bit bright for me, but better than navy (which is too dark for my taste). Really I wanted purple, but it had to fit in with the rest of the series.
I love the deer too. The founder of the company is Richard Hart, hence the deer. Each and every person in the publishing company has been an absolute joy to deal with, incidentally. I recommend them if you are thinking of writing a scholarly legal book.
The last time I saw SL she was about to go to Oxford and had just put her foot through a laptop. I saw her going into a computer shop in James Street.
BTW, will be in Melbourne later in the year LE. Will expect coffee so I can get my copy of your heretical text signed.
Just interested to know whether you think there is a role for legislative reform to allow for an account of profits for breach of contract?
Awesome, Nick, will look forward to coffee!
Re legislative reform – yes I do, and I’d rather like the Federal Government’s Contract Law reforms to add in something about AOP for breach of contract along the same lines as the US Restatement (of course, taking into account all the things I say in my book). Don’t know what my chances are?
I think it would be a good reform. I just don’t think you can get there from the cases. Perhaps I’ll be persuaded otherwise by your book?!
Good on you, LE. I hope your book becomes a legal classic!
“Hart Studies in Privale Law”
Wikipedia saysthat private law is to be “distinguished from public law, which deals with relationships between both natural and artificial persons”.
This has been niggling away at me, and I’m hoping both you and Hart have exceeded the brief.