Duncan, I would be interested in your take on the flaws.

----- Original Message -----
From: "Duncan Sheehan (LAW)"
Date: Friday, November 23, 2007 12:29 pm
Subject: Re: [RDG] ODG RE: deceit: damages and account

Speaking (or maybe writing) as one who does in large measure accept that the disgorgement measure reflects corrective justice, I'd be interested to know what Jason thinks the reasons why fraud doesn't support it are. I can't immediately think of them, so I too will line up with Charles & Lionel.

On Abbots v Barry, I think the only answer is doesn't it depend on your view of unjust enrichment. If, unlike me, you accepted Peter's explanation in his last book of interceptive subtraction, would you not say that the possession of the wine carried with it earnings opportunities and therefore the sale proceeds could also be taken by unjust enrichment? In any case not being familiar with the case, was X D's agent, and if so wouldn't that make a difference?

  

Duncan

Ps I am wholly unpersuaded that English law accepts juristic reasons – the new Birksian model strikes me as flawed in a number of respects; explanations forthcoming if you like.