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Gain-Related Recovery

Giglio, Francesco (2008) Gain-Related Recovery Oxford Journal of Legal Studies, 28 (3). pp. 501-521.

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With his ‘event-based classification’, the late Peter Birks provided a coherent and principled framework for the civil law of obligations. In this article, ‘restitution’ is considered in the context of his taxonomy and two main propositions are advanced. The first proposition is that ‘gain-related recovery’ is the most adequate description of restitution as a legal response. The second proposition is that the term ‘restitution’ qualifies the mechanism of taking away the defendant's benefit without any direct reference to the immediate purpose of the award and therefore has both a ‘giving up’ and a ‘giving back’ function. Those theories which distinguish these two functions, it is argued, confuse the mechanism of the right realized with the aim of the response awarded. Restitution as a legal response can be applied to reach different aims, such as giving back wealth mistakenly transferred by the claimant to the defendant or surrendering profits wrongfully obtained by the defendant. Yet, the right to restitution which is realized in court operates always in the same fashion: it transfers to the claimant wealth up to the level of the defendant's benefit. This interpretation tackles the criticism of those favourable to ‘disgorgement’, that is ‘giving up’, as an independent legal response and shows that their concerns are justified, but do not affect the consistency of the event-based classification.

Item Type: Article
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
Date : 22 August 2008
DOI : 10.1093/ojls/gqn013
Copyright Disclaimer : Copyright 2008 Oxford University Press
Depositing User : Melanie Hughes
Date Deposited : 05 Sep 2017 15:36
Last Modified : 16 Jan 2019 18:56

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