Reallocating Gains: A Systematic Approach to Disgorgement of Profits
Publikation: Beiträge in Zeitschriften › Zeitschriftenaufsätze › Forschung › begutachtet
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in: European Review of Private Law, Jahrgang 27, Nr. 4, 08.2019, S. 823-849.
Publikation: Beiträge in Zeitschriften › Zeitschriftenaufsätze › Forschung › begutachtet
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RIS
TY - JOUR
T1 - Reallocating Gains
T2 - A Systematic Approach to Disgorgement of Profits
AU - Boosfeld, Kristin
N1 - Publisher Copyright: © 2019 Kluwer Law International. All rights reserved.
PY - 2019/8
Y1 - 2019/8
N2 - The article argues that a ‘bilateral’ conceptualization of disgorgement of profits provides appropriate solutions when gains have been made in violation of rights. For reasons of deterrence, it is usually clear that the defendant should disgorge (part of) his gain. The deterrence argument, however, does not explain why the claimant should receive it. The article develops a differentiated model considering both the positions of the right-holder and of the profit-maker. Its main proposition is that both should be put into the position they would have been in had the profit-maker made the gain in a lawful way. To this end, he would have had to come to an agreement with the right-holder regarding the use of the right. This hypothetical contract, the particulars of which are elaborated in this article, is used as a starting point to find appropriate solutions for the reallocation of profits.
AB - The article argues that a ‘bilateral’ conceptualization of disgorgement of profits provides appropriate solutions when gains have been made in violation of rights. For reasons of deterrence, it is usually clear that the defendant should disgorge (part of) his gain. The deterrence argument, however, does not explain why the claimant should receive it. The article develops a differentiated model considering both the positions of the right-holder and of the profit-maker. Its main proposition is that both should be put into the position they would have been in had the profit-maker made the gain in a lawful way. To this end, he would have had to come to an agreement with the right-holder regarding the use of the right. This hypothetical contract, the particulars of which are elaborated in this article, is used as a starting point to find appropriate solutions for the reallocation of profits.
KW - Law
KW - disgorgement of profits
KW - legal theory
KW - private law
KW - restitution
UR - http://www.scopus.com/inward/record.url?scp=85152421348&partnerID=8YFLogxK
U2 - 10.54648/erpl2019043
DO - 10.54648/erpl2019043
M3 - Journal articles
VL - 27
SP - 823
EP - 849
JO - European Review of Private Law
JF - European Review of Private Law
SN - 0928-9801
IS - 4
ER -