Correcting unjust enrichment: explaining and defending the duty to disgorge the benefits of wrongdoing

Abstract

ABSTRACT Agents sometimes innocently benefit from the wrongdoing perpetrated by others. It has been asserted that when this happens the beneficiary acquires a defeasible duty to disgorge these benefits until the beneficiary’s gain is extinguished or the victim’s loss has been reversed. At the same time, critics have denied the existence of duties of disgorgement. In this paper, we contribute to this debate by proposing a novel account of the underlying justification, or rationale, for disgorgement duties grounded in the value of corrective justice. An agent benefiting from injustice has a duty to disgorge, on this account, because fulfilling this duty helps correct injustice by making it as though the transaction that wrongfully enriched them had never happened. We go on to address five objections to this account of disgorgement duties and argue that the corrective justice account can withstand these objections.