Kit Barker, ‘“Damages Without Loss”: Can Hohfeld Help?’

Abstract:
This article addresses a still unsolved puzzle in private law regarding the proper explanation of cases in which courts make substantial awards of damages to claimants whose rights have been infringed, but who appear to have suffered no factual loss in consequence of the infringement. The paradigm examples tend to involve awards of ‘user’, license fee or ‘hypothetical bargain’ damages in cases involving interference with property rights. It suggests that existing explanations of such cases are all unsatisfactory in one or another respect and posits a new and potentially more powerful explanatory thesis, drawing on Hohfeld. Such awards, it argues, compensate right-holders for the loss of legal powers associated with their primary claim-rights — in particular, the loss of powers they are accorded by the law to ‘prevent’ the infringement of certain types of primary claim right ex ante. Legal powers are thus to be regarded as assets or amenities, the loss of which is amenable to monetary compensation.

Kit Barker, ‘Damages Without Loss’: Can Hohfeld Help?, Oxford Journal of Legal Studies (Winter 2014) 34(4): 631-658, doi: 10.1093/ojls/gqu012.

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