Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Tue, 25 Mar 2003 16:21:59 |
| Re: |
Hendrix |
At 09:22 25/03/03 -0500, Hanoch Dagan wrote:
Furthermore, if this is the rule of
the case, it does not involve any discretionary remedialism: this measure
of recovery applies in other restitutionary contexts as well; notably,
in the American context, in cases of patent infringements.
My reference to "discretionary remedialism" was a reference
to the measure in Blake,
which (as appears from both Blake and Hendrix)
is discretionary through-and-through.
I entirely agree that the Hendrix measure is not discretionary.
It is available as a matter of right in a variety of different contexts,
in contract and tort and restitution (though of course some empire-builders
have claimed that they are all "really" restitutionary). This is precisely
why talk of both measures being on the same "sliding scale" is confused
and confusing. Chalk is not on a "sliding scale" with cheese.
(By the way, what sort of breach of contract does NOT
consist of one contractor doing "the very thing s/he contracted not to
do"? These words seem to me apt to describe any breach of contract, and
I have never understood what special class of case the phrase is meant
to indicate.)
Steve Hedley
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