Disgorgement: From property to contract

Abstract

The article develops an understanding of the disgorgement remedy in private law by moving between the proprietary context, where the remedy has long been awarded, and the contractual context, where the remedy is relatively new and still controversial. The resulting account can explain the emerging common law on disgorgement for breach of contract, which has so far eluded explanation. The account also has broader implications for private law theory. First, it suggests that asking whether the plaintiff has a right ‘to a thing’ (the paradigmatic sort of property right) may obscure the remedial analysis. Instead, the analysis should attend to another, hitherto overlooked aspect of the plaintiff’s rights: their logical scope. Second, the account suggests that a purely ‘rights-based’ understanding of private law remedies cannot adequately explain disgorgement, because it elides the crucial role that the defendant’s wrongful action plays in the explanation for the remedy.