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Vol 22 No 9 Sept/Oct 2017

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The Foundations of Restitution for Wrongs


ISBN13: 9781841136479
Published: March 2007
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £70.00



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'Restitution for wrongs', or 'restitutionary damages', is the judicial award which compels the wrongdoer to give up to the victim the benefit obtained through the perpetration of the wrong, independently of any loss suffered by the victim.

The establishment of a civil trial in Roman law, which left compensation as the main response, and a widespread, loss-centred interpretation of the Aristotelian theory of corrective justice explain, but do not justify the difficulties encountered by modern attempts to account for restitutionary damages. Mistakes in the classification of this institution have complicated the picture.

To overcome some of these problems, this study considers the basic structure of restitutionary damages from different angles. In part one, the topic is analysed from a comparative perspective. Although the focus remains on English law, the German, the Italian and the Roman jurisdictions provide research data which, in part two, support the development of a theory of restitution for wrongs as corrective justice.

Subjects:
Restitution
Contents:
Introduction
1. Terminology and Introduction to the Concept of Restitution for Wrongs
I First Things First
II Restitution
III Wrong
IV Setting the Terminological Premises
2. Restitution in the Context of the Law of Obligations
I Legal Analysis
II Some Remarks
3. Comparative Analysis: Proprietary and Intellectual Property Wrongs
I Organisation of the Analysis
II Proprietary Wrongs
III Intellectual Property Wrongs
4. Comparative Analysis: Breach of Contract
I English Law
II German Law
III Italian Law
5. Comparative Analysis: Other Wrongs and Concluding Observations
I Other Wrongs
II Concluding Observations
6. The Roman Law of Damages
I The Role of Non-Compensatory Responses
II Legal Responses to Wrongs
III The Punitive Character of the Roman Law of Delict
IV Penal and Compensatory Actions
VI Evolution of the Law of Damages in the Post-Classical Period
VII The Law of Damages in the Ius Commune
VIII Some Reflections
7. The Law of Damages in the Tradition of Aristotelian Philosophy
I Introduction
II The Aristotelian Approach to Responses to Wrongdoing
III Aristotelian Theory and Law of Damages
IV The Influence of Philosophical Analysis over Legal Interpretation
8. Modern Aristotelian Approaches to Restitution for Wrongs
I Introduction
II German Legal Theory and Aristotelian Justice
III A Moral Instrumentalist Theory on the Law of Damages
IV A Moral Formalist Theory on the Law of Damages
V Corrective Justice and Restitution for Wrongs
9. Wrongs and Restitution
I Introduction
II Birks' Three Tests
III Protection of Facilitative Institutions
IV General Acceptance
V Position of the Law Commission
VI Restitution Disgorgement and Deterrence
VII The Requirements of the Claim
VIII The Object of the Restitutionary Claim
IX Election between Compensation and Restitution
X The Neutrality of Restitution for Wrongs
XI The A Fortiori Argument
XII Conclusions
10. Final Observations
I The Outcome of the Research
II The Chosen Avenue
III Law of Obligations and Restitution for Wrongs
IV The Comparative Perspective
V The Historical Perspective
VI The Philosophical Perspective