Francesco Giglio

Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant. In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

Restitution for Wrongs: A Structural Analysis

In this essay, I seek to provide an account of the scope and justification of gain-based damages for civil wrongs. My starting point is that the main accounts of restitution for wrongs are inconsistent with the structure of the law of damages. My alternative explanation provides a framework which is coherent with the law of obligations and allows a reading of restitution for wrongs in terms of corrective justice. When a wrong affects a proprietary or proprietary-like interest, I argue that the normal response is compensation, not restitution. In this context, I introduce the expression ‘pseudo-restitutionary damages’ to identify those awards in which the claimant’s loss is measured by the defendant’s gain. The true nature of pseudo-restitutionary damages is revealed by their close link to the loss. When the loss disappears, the benefit disappears with it. Unlike pseudo-restitution, proper restitution for wrongs requires a benefit which is independent of the loss and is only connected to the wrong. The benefit cannot be dissociated from the claimant’s loss if it is the consequence of a wrongful direct transfer of wealth from the claimant to the defendant. Corrective justice can account for proper restitutionary damages. It provides a normative ground for the victim to seize the defendant’s gain independently of any loss suffered by the victim. It isolates the wrongdoer and the victim as the parties to a restitutionary claim. The award is granted because it would be unjust if the wrongdoer would go scot-free with his wrongful gains; and it is granted to the victim because any wrongful behaviour is detrimental to the sufferer of the injustice. Although quite distinct, compensation and restitution for wrongs show certain structural similarities. The former aims to place the victim in the same position in which the victim was before the damaging event took place; the latter seeks to place the wrongdoer in the same position in which the wrongdoer was before he performed the wrongful act. Both legal responses aim at neutrality as between the pre- and post-wrong position but in respect of different parties.

The Taxonomy of the actio furti. Between Ownership and Commerce

In this paper, the actio furti is examined from the perspective of the claimant. After a brief overview of the literature, the main thesis is introduced according to which the actio furti concerned a legal dispute over the control of a thing. The central section of the investigation is dedicated to an analysis of the sources, and particularly to the references to ownership and possession as the gateways to the action. It is followed by a fully-fledged exposition of the theory of control in which it is argued that the aim of the action was the protection of the circulation of goods. Between ownership and commerce, the actio furti privileged the latter over the former.