Comparative perspectives on disgorgement of profits in tort and contract

Disgorgement as a remedy seems not to fit well within the conceptual categories traditionally used in different legal systems. Indeed, it has proven to possess a proverbially elusive nature, which has caused scholarly rivers of ink to flow and plunged the remedy at stake into a nebula of uncertainty. This has been so even though important legal effects may depend on that issue. Much of the obscurity is due to the fact that the conditions for the operation or application of disgorgement remain far from clear, both in contract and tort. By adopting a comparative perspective, those conditions are critically examined within the framework of a theory of its legal nature. It is submitted that traditional legal categories fall short of both describing and providing a sufficiently robust analysis of disgorgement so as to make it operative and provide the legal foreseeability that is much needed in practice. The chapter compares the approaches adopted both in civil law and the common law legal families. In particular, it explores whether, and to what extent, the resulting situation across legal systems may ultimately not be so very different in practice in spite of the diverging starting points in theory.