Reallocating Gains: A Systematic Approach to Disgorgement of Profits

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Reallocating Gains: A Systematic Approach to Disgorgement of Profits. / Boosfeld, Kristin.
in: European Review of Private Law, Jahrgang 27, Nr. 4, 2019, S. 823-849.

Publikation: Beiträge in ZeitschriftenZeitschriftenaufsätzeForschungbegutachtet

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@article{ffdd3434220b4e7eabe544d9f2daff62,
title = "Reallocating Gains: A Systematic Approach to Disgorgement of Profits",
abstract = "The article argues that a {\textquoteleft}bilateral{\textquoteright} 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.",
keywords = "Law",
author = "Kristin Boosfeld",
year = "2019",
doi = "10.54648/erpl2019043",
language = "English",
volume = "27",
pages = "823--849",
journal = "European Review of Private Law",
issn = "0928-9801",
publisher = "Kluwer Law International",
number = "4",

}

RIS

TY - JOUR

T1 - Reallocating Gains

T2 - A Systematic Approach to Disgorgement of Profits

AU - Boosfeld, Kristin

PY - 2019

Y1 - 2019

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

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 -

DOI