Law of Remedies: A European Perspective, Franz Hofmann and Franziska Kurz (eds)

Abstract

Is there such a thing as a European law of remedies? In this new book, editors Franz Hofmann and Franziska Kurz bring together an impressive number of contributions that give the reader a bird's eye view of this emerging field of study. The potential of remedies scholarship is well illustrated by the book's extensive coverage: among other things, it analyses the trade-off between public and private enforcement, discusses damages and disgorgement of profits and addresses the allowability of remedies against innocent third parties. What is more, the book links these issues to various areas of substantive law, such as copyright, contracts and criminal law. It thus provides a solid starting point for readers wanting to familiarize themselves with potential avenues of research. The focus of the book is primarily on the UK and Germany. It is well known that English law separates, at least to a certain degree, remedies from substantive claims. Thus, in his contribution, Paul Davies points out that remedies have long been an established field of legal research in the UK, but warns against treating it as a ‘stand-alone’ subject, wholly distinct from the underlying material claim. He argues that it is best to seek coherence across causes of action and remedies, rather than uniformity of remedies per se, since the nature of the wrong will often determine the remedy. To illustrate the point, he discusses the UK Supreme Court case Morris-Garner v One Step LLC, which held that damages awarded for breach of contract are compensatory in nature because remedies in contract law ‘are designed to give effect to what was voluntarily undertaken by the parties’.1 They are thus not restitutionary in nature, as remedies in other fields of law can be. According to Davies, this shows that one must not ‘start by thinking that restitution is a remedy that can be awarded as a response to wrongdoing’; the availability of restitution is in fact determined by the nature of the underlying legal basis for compensation.2