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Subjective valuation of enrichment in restitution for wrongs

Rotherham, Craig

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Abstract

The received wisdom is that release-fee awards, sometimes known as “Wrotham Park damages”, are available against morally blameless defendants who have committed torts of strict liability. This article argues that such defendants who have not been incontrovertibly enriched as a result of any potential benefit gained from the wrong should be entitled to rely on principles of “subjective devaluation”, rather than having their liability assessed according to the objective value of that benefit. On the other hand, in contrast to the approach taken in cases of subtractive unjust enrichment, defendants should not be protected in this way if they were careless in breaching a claimant’s rights. In addition, this article suggests that in cases of deliberate breaches where it can be shown that the defendant attached a value to the benefit in question that exceeds its market price, the defendant should be liable at that higher level. It is apparent that it is only if release fees are treated as gain-based that the interests of morally blameless defendants can be appropriately accommodated through principles such as subjective devaluation that serve to protect the autonomy of deserving defendants

Citation

Rotherham, C. (2017). Subjective valuation of enrichment in restitution for wrongs. Lloyd's Maritime and Commercial Law Quarterly, 2017(3), 413-434

Journal Article Type Article
Acceptance Date May 3, 2017
Online Publication Date Aug 8, 2017
Publication Date Aug 8, 2017
Deposit Date Jun 21, 2017
Publicly Available Date Feb 26, 2020
Journal Lloyd's Maritime and Commercial Law Quarterly
Print ISSN 0306-2945
Electronic ISSN 0306-2945
Publisher Informa Business Intelligence
Peer Reviewed Peer Reviewed
Volume 2017
Issue 3
Pages 413-434
Public URL http://eprints.nottingham.ac.uk/id/eprint/43687
Copyright Statement Copyright information regarding this work can be found at the following address: http://eprints.nottingh.../end_user_agreement.pdf

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