Contractual Performance, Corrective Justice, and Disgorgement for Breach of Contract

This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract gives the promisee a right to only the promisor’s performance of the contract, such a right can sometimes entail the acquisition by the promisee of certain rights of ownership. And in situations in which such rights are acquired, the disappointed promisee is entitled to the gains realized by the promisor in breach of contract by reason of the fact that such gains are something to which the promisee has an antecedent right.