This book focuses on an emerging problem in English contract law: what
should be done when a party has been unjustly enriched as the result of
a breach of contract but there is no measurable loss suffered by said
party? Two rulings are at the heart of the book: Wrotham Park Estate v
Parkside Homes and Attorney-General v Blake. These two cases can be said
to have established gain-based remedies in English contract law.
However, the principles that underpin these remedies are not entirely
clear and are subject to debate.
This book analyses these principles through the lens of compensatory and
restitutionary approaches. Moreover, it applies a comparative analysis
of these approaches through the lens of the civil law jurisdiction in
Poland.
Since the term 'compensation' is not a universal concept, the book
distinguishes between two rationales in the compensatory analysis. The
first, reparative compensation, is defined as a form of monetary
recompense for loss or damage actually suffered. The second,
substitutive compensation, represents a monetary equivalent to a right
that a person has been deprived of or denied. Both rationales require
the application of a broad notion of loss in order to make gain-based
remedies workable in both English and Polish law.
In contrast, 'restitution' states that a person cannot be permitted to
profit from their own wrongdoing. Based on this principle, the book
argues that gain-based remedies could be applied under Polish law
through the rules of unjust enrichment. However, in order to do so, a
broader understanding of the subtraction prerequisite (the enrichment
being at the aggrieved party's expense) would have to be adopted. The
book concludes that unjust enrichment is a more natural way of
implementing gain-based remedies in civil law jurisdictions.
