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I agree that the Blake full profit measure should be exceptional. As I have suggested before I think it should be available only where the claimant will suffer significant uncompensable harm if the defendant does not perform the contract. This accounts for disclosure of information cases including government secrets and also generally negative obligations, because here generally the claimant cannot get substitute performance from someone else. It also accounts for fiduciary cases, but I would not say that the availability of the full profit measure is dependent on the contract's being "close to fiduciary", because there are cases where this test is satisfied that are clearly not fiduciary because there is no discretion involved.

I also agree that the full profit measure should be kept quite distinct from the "reasonable payment" measure. The two are based on quite different principles. A few years ago I used the expressions "disgorgement damages" and "restitutionary damages" to distinguish between them. Disgorgement is based on the principle that a wrongdoer should not profit from a wrong, so the question in contract is when it is really wrongful not to perform a contract, and I think this is where uncompensable harm will result. In the original trespass cases and the IP cases the basis of the "restitutionary damages" claim seems to me to be simply the right of an owner to the "use-value" of the property, by virtue of which he can exact a reasonable payment for use. But this cannot be applied straightforwardly to contract. Possibly it would apply where the very purpose of a contractual restriction was to enable a fee to be subsequently exacted in return for waiving the restriction, giving the claimant a right to some part of the value of the restricted activity. This is the case in some but not all restrictive covenant cases and possibly it could be relevant in Hendrix.

Peter.

Prof Peter Jaffey
Law Department
Brunel University
Uxbridge
Middx UB8 3PH

Tel: 01895 274000
Web: http://www.brunel.ac.uk/depts/law/index.htm