LIABILITY TO DISGORGE PROFITS UPON BREACH OF CONTRACT OR A DELICT

Abstract

Remedies regarding contract and tort are, generally speaking, concerned with the incidence of liability for loss or damage suffered, whereas the claim in unjust enrichment is said to require that the enrichment has occurred at the expense of the creditor. Consequently claims for breach of contract and tort are brought for damages. The following claims will, however, be denied: profits from the party who breached the
contract, the tortfeasor or which the otherwise unjustly enriched defendant has gained as a result of breaching the contract, committing the tort or invading the rights of the plaintiff. There are, however, numerous exceptions to this general rule to be found in various jurisdictions. Consequently the question arises whether these exceptions do or do not amount to a new general rule concerning disgorgement of illegally obtained profits.