Marc Kruithof

Disgorgement of profits in Belgian Private Law

The traditional rendition of Belgian law does not list disgorgement as a remedy. In reality, however, disgorgement is ordered in certain circumstances, but it is generally not recognized as such. For example, case law on personality rights and intellectual property rights contains examples where courts, under the banner of loss compensation, in fact set damages at a level higher than the actual losses to force the wrongdoer to hand over his profits. Also, non-compliance penalties are set at a level to provide an incentive to obey a court order, requiring the amount to be equal to the profits that can be made by ignoring the order. On the other hand, some instances of primary proprietary rights to profits can alternatively be understood as examples of disgorgement as a remedy for infringements of rights. Examples are the right of an owner to the fruits a male fide possessor realizes from his property and the right of the solvens to the income the bad faith accipiens has earned from an undue payment. In the view of the national reporter, Belgian private law apparently includes a (hidden) general principle that gives the holder of a subjective right a claim for disgorgement of profits realized by another person who in bad faith infringed the exclusive authority of the rightholder. This general principle has not (yet) been explicitly recognized by the courts, but it helps to understand what courts are actually doing in cases that cannot be explained under standard rules of civil liability.