I'm not sure this is close enough, but here goes. In Ireland, damages in the restitution measure for breach of contract are awarded due to the "bad faith" of the defendant: Hickey v. Roches Stores (No. 1) (14 July 1975) [1993] R.L.R. 196. In California, the same impulse created a tort of "bad faith breach of contract" in Seaman's Direct Buying Service v. Standard Oil 36 Cal.3d 753 (1984). The effect was that the bad faith contract breacher could be stripped of his profits in both jurisdictions; and, from the perspective of the law of restitution, that was a restitutionary response, whether achieved through restitution for the wrong of breach of contract of restitution for the wrong of the tort of bad faith breach of contract. However, the Californian Supreme Court this Summer overruled Seaman's, in Freeman & Mills Inc. v. Belcher Oil Co. -- Cal.3d -- (1995); (1995) Daily Appellate Reports 11851 (31 August 1995). Thus this route to a restitution measure of damages for breach of contract is now closed off in California.

Apart from my previous mail about Fulton v. Faulkner, I've not noticed other discussions of U.S. issues on this list. Is this because nobody else replied, or the replies were private ? Whatever, I hope this helps.

Eoin.

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449

(All opinions are personal; no legal responsibility whatsoever is accepted.)
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