5

¹ Whiten v. Pilot Insurance Co. [2002] 209 D.L.R. (4th 257 (S.C.C.)); Attorney-General v. Blake [2000] 4 All E.R. 385 (H.L.); Adras Building Material v. Harlow & Jones [1995] Restitution L.R. 235 (Supreme Court of Israel, 1988).

² L. L. Fuller and William R. Perdue, “The Reliance Interest in Contract Damages,” (1936) 46 Yale L.J. 52, 373.

³ Ibid., 61.

⁴ The most detailed contemporary application of corrective justice to contact law is found in the work of Peter Benson; see especially Benson, “The Unity of Contract Law,” in The Theory of Contract Law: New Essays, ed. Peter Benson (2001), 118.

⁵ Above n. 3. My treatment of the article by Fuller and Perdue has been much influenced by Peter Benson, “Contract,” in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson, 2nd ed. (2011), 29, 30–34.

⁶ Above n. 2, 56

⁷ Ibid.

⁸ Ibid., 53.

⁹ Ibid., 56.

¹⁰ Ibid., 59.

¹¹ Ibid., 59–60.

¹² Barry Nicholas, An Introduction to the Study of Roman Law (1962), 103.

¹³ The difficulty to which Kant was responding was not dissimilar to that raised by Fuller and Perdue; see Helge Dedek, “A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract,” (2012) 25 Can. J. L. & Juris L, 313.

¹⁴ Immanuel Kant, The Metaphysics of Morals, tr. Mary Gregor (1996), [6:247].

¹⁵ Ibid., [6:402].

¹⁶ Ibid., [6:424].

¹⁷ In Kant’s view, the acquisition of a thing by means of a contract involves two conceptual steps: the contract that makes a certain act (delivery of the thing) obligatory, and then the delivery that accomplishes the transfer of property by putting the promisee into possession of the thing (ibid., [6:424–26]). While it is true that the contract to deliver something makes the promisee’s acquisition of the subject matter of the contract a “rightfully necessary result of it” (ibid., [6:432], emphasis in original), that result is the consequence of the promisor’s discharge of the obligation, not “a part of the contract” (ibid.)—that is, not constitutive of the obligation itself. Kant here is following a principle of Roman law that survived in Germany, that the contract of sale (emptio venditio) does not itself transfer property; that happens only through a subsequent conveyance, such as delivery (traditio); see Fritz Schultz, Classical Roman Law (1951), 526–33. In holding this view, Kant implicitly disagreed with Grotius and Pufendorf, both of whom rejected the principle of Roman law, that contract does not convey property; see Hugo Grotius, De Jure Belli ac Pacis Libri Tres, 2 vols., tr. Francis W. Kelsey (1925), vol. 2, 308–9; Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, 2 vols., tr. C. H. and W. A. Oldfather (1934), vol. 2, 610–11.

¹⁸ Kant, above n. 14, [6:424].

¹⁹ Above n. 8.

²⁰ Above n. 2, at 52.

²¹ Daniel Friedmann, “The Performance Interest in Contract Damages,” (1995) 111 Law Q.R. 628, 646–54.

²² Ibid., 629.

²³ Andrew Burrows, “No Restitutionary Damages for Breach of Contract,” (1993) Lloyd’s Maritime & Commercial L.Q. 453.

²⁴ John Dawson, “Restitution or Damages?,” (1959) 20 Ohio St. L.J. 175, 189.

²⁵ Samson and Samson v. Proctor [1975] 1 N.Z.L.R. 655 (S.C.) (builder, in breach of building contract, puts insufficient steel reinforcing into house which is sold at a price undiminished by the defect; court holds that a deduction from the contract price is not a departure from the fundamental principle of compensation). See also Blake, above n. 1, at 398.

²⁶ Wrotham Park Estate v. Parkside Homes [1974] 1 Weekly L. Rep. 798. (Ch. D.); see the different interpretations of this case in Blake, above n. 1, at 395–97, 410.

²⁷ E. Allan Farnsworth, “Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract,” (1985) 94 Yale L.J. 1339, 1354–60.

²⁸ British Motor Trade Association v. Gilbert [1951] 2 All E.R. 641 (Ch. D.).

²⁹ Lamine v. Dorrell, 92 Eng. Rep. 303 (1705). See Daniel Friedmann, “Restitution of Benefits Obtained through the Appropriation of Property or the Commission of a Wrong,” (1980) 80 Colum. L. Rev. 504; Graham Virgo, The Principles of the Law of Restitution, 2nd ed. (2006), 454.

³⁰ Above, n. 1; see Daniel Friedmann, “Restitution of Profits Gained by Party in Breach of Contract,” (1988) 104 L.Q.R. 383.

³¹ Above, n. 1. The parallel case in the United States, Snepp v. United States, 100 S. Ct. 763 (1980), differs in that the promisor in Snepp was held to be a fiduciary. On the other hand, it is hard to resist the impression that, in ordering the disgorgement, the court in Blake was aiming not merely at the promisor’s breach of contract in publishing his memoirs, but at the traitorous activities that gave him the notoriety that made his memoirs profitable—an aspect not present in Snepp.

³² A clear formulation of this much-discussed notion appears in Richard A. Posner, Economic Analysis of Law, 5th ed. (1998), 131. See also David W. Barnes, “The Anatomy of Contract Damages and Efficient Breach Theory,” (1988) 6 S. Cal. Interdisc. L.J. 397.

³³ On the difference between historical and normative connection, see above, chapter 4, section 2.

³⁴ Adras, above n. 1, at 272. Similarly Justice S. Levin, at 241, acerbically remarked that “the approach of the economic school of law ignores in cases like this the fact that we are dealing with people with moral feelings and not with robots.”