Pub Date : 1994-09-01DOI: 10.4324/9781003073321-15
W. J. Gordon, Tamar Frankel
In Boomer v. Muir, a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.
Please see the complete abstract in the article.
在Boomer v. Muir一案中，水电项目的分包商继续提供货物和服务，尽管其绩效价值远远超过合同价格。接收这些货物和服务的总承包商违反了合同，尽管他支付的价格低于市场价格。请参阅文章中的完整摘要。
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Introduction The recent English Court of Appeal case of Experience Hendrix v PPX Enterprises Ltd is the latest to consider the law concerning the liability of a contracting party in respect of the profits of a breach of contract, following the decision of the House of Lords in Attorney-General v Blake. The issue is of practical importance and theoretical interest. In this note I will outline what I argue is the best interpretation of Blake and its theoretical basis, and consider its implications for Hendrix. I will deal first with the claim for all the profits of a breach, and then with the lesser claim for some fraction of the defendant’s benefit, conceived of as a sort of deemed licence fee or quid pro quo for breach. The former was described in Blake and Hendrix as an “account of profits”, but I will refer to it as “disgorgement”. The latter I will refer to as “licence fee damages”. I will argue that these are distinct types of claim, although in Blake and Hendrix they were regarded as variants of a single type of claim.
最近英国上诉法院审理的Experience Hendrix v PPX Enterprises Ltd案是继上议院在总检察长诉布莱克案中作出决定之后，考虑缔约一方对违约利润的责任法律的最新案件。这个问题具有重要的现实意义和理论意义。在这篇文章中，我将概述我认为对布莱克的最佳解释及其理论基础，并考虑其对亨德里克斯的影响。我将首先处理对违约行为的全部利润的索赔，然后是对被告利益的一部分的次要索赔，被认为是一种视同的许可费或违约的交换条件。前者在布莱克和亨德里克斯的著作中被描述为“利润账户”，但我将称之为“分赃”。我将后者称为“许可费损害”。我认为这些是不同类型的主张，尽管在布莱克和亨德里克斯那里它们被看作是同一种主张的变体。
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