Date: Fri, 23 Nov 2007 18:47

From: Lionel Smith

Subject: Deceit: damages and account

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 exigible-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

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