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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 October 2021

The Disgorgement Interest in Contract Law

The Disgorgement Interest in Contract Law

(p.335) Twenty-Six The Disgorgement Interest in Contract Law
Foundational Principles of Contract Law

Melvin A. Eisenberg

Oxford University Press

Chapter 26 considers the disgorgement interest. This is a promisee’s interest in requiring the promisor to disgorge a gain that was made possible by her breach but did not consist of a benefit conferred upon her by the promisee. The disgorgement interest and the corresponding disgorgement measure are the mirror images of the expectation interest and the expectation measure. The expectation measure is intended to place a promisee in the position he would have been in if the contract had been performed. In contrast, the disgorgement measure is intended to place a promisor in the position that she would have been in if the contract had been performed. Accordingly, perfect disgorgement makes the promisor indifferent between performing, on the one hand, and paying damages, on the other.

Keywords:   disgorgement, disgorgement interest, disgorgement measure, expectation measure, promisee

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