Date: Fri, 3 Nov 2006 00:31:59 +0200

From: Tsachi Keren-Paz

Subject: Defamation and compensation for enrichment

Few thoughts:

1) As some have mentioned before, if punitive (or aggravated) damages are tailored to strip off the tortfeasors from the ill-gotten gain, why not tacking this directly by a restitutionary remedy?

2) The fact that gain from reputation-tarnishing cannot easily be defended as a subtraction case, does not suggest that such a move is indefensible. I find Jason's conceptualization of taking one's reputation and converting it into profit as powerful. Similarly, when an offender cash-in his notoriety which was based on infringing the victim's interest, I view it as a case in which the protected interest of the victim was taken and converted into gain, and by this loosely conforming with a subtraction paradigm. Here, different situations exist and a stronger case for subtraction-based claim can be made when the notoriety of the offender stem from the reputation of the victim. As others (such Dan) have observed, the fact that that interest in inalienable, does not suggest that restitution should be withheld if the interest was taken unilaterally by the defendant.

Some support for this approach which broadens the concept of subtraction can be found in an Israeli Supreme Court decision in which few judges held that the original owner whose piece of art was sold by an intermediary to the defendant (when the existence of market overt was in dispute) can trace the intermediary's right to ask the court to rescind a contract due to common mistake. CFH 2568/97 Cna'an v US, PD 57(2) 632. These judges held that the right to rescind is a substitution to the economic value of the item.

Tsachi Keren-Paz
Faculté de droit de l'Université de Montréal
Pavillon Maximilien-Caron, bureau A-7450,
3101 chemin de la Tour
C.P. 6128, succ. Centre-Ville
Montréal Québec Canada
Phone: 514-343-7211 (w) 514-489-2871 (h)

----- Original Message -----
From: "Robert Stevens"
To: "Daniel Friedmann"
Cc: "Jones, Michael"; "Jason Neyers"
Sent: Thursday, November 02, 2006 10:20 PM
Subject: Re: RE: ODG: Defamation and compensation for enrichment

Dan wrote:

A closer example is that of the defendant cutting the plaintiff's nose or any other part of his body and sells it (eg for medical or research purposes). Although this is a nonsalable "property" the defendant should be liable in restitution.

Once detached, is a nose non-saleable at common law? I know that the sale of human organs is a criminal offence in the UK, but Jo in Little Women was able to sell her hair, why not a nose?

Who has title to my schnoz once it is severed? Me, presumably, if I am in possession, but what if the removal is carried out by someone else who now has possession of the proboscis? I have not rooted around for the answer to these questions.

Of course, although the subject matter of my right to bodily safety, my hooter, can be transferred once detached, this is not the same thing as the right itself which is inalienable, although it can be waived.

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