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The question indeed is whether the plaintiff’s right includes a right to any gain derived from breach, but the suggestion that this is only true in property tort cases is not at all clear. All my rights are mine in some sense. What is special about property rights? Depending on which of its many meanings one is using, the most obvious answer is that they are exigible against lots of people. I have never understood the argument that exigibility-against-many has any necessary connection to entitlement to gains acquired through breach (the argument that it has was explicitly rejected in Blake).

In my own view, bringing in fiduciary law only weakens the claim that gain-based claims are confined to property claims. A duty of loyalty is a right-duty relationship, not a property relationship (assuming still that we are using ‘property’ to mean exigibile-against-many). So the availability of gain-based remedies for breach of fiduciary obligation tells against any argument that such remedies are about property rights. If we start saying it is ‘like’ property then we have abandoned the initial premise, that this is confined to property, and the question remains unanswered, which rights allow gain-based remedies for infringement?

Lionel

On 23/11/07 13:19, "Jason Neyers" wrote:

It’s been awhile since I thought about this in detail but as I remember the/a corrective justice view (Weinrib, "Restitutionary Damages as corrective justice"), gain-based remedies are available where the content of the plaintiff's right includes the right to a gain. Without such an entitlement, the fact that the defendant causally made a gain following the violation of my right is irrelevant -- I am entitled to have my means restored not someone else's. So gain-based remedies are essentially available only in property tort situations because the right to property includes the right to the use, fruits and abuse of it and in situations where the wrongdoer basically has sold my right treated as property (as in the fiduciary duty situation where the wrongdoer has sold out their the duty of loyalty).