Damages without loss: can Hohfeld help?

Barker, Kit (2014) Damages without loss: can Hohfeld help?. Oxford Journal of Legal Studies, Advance Access 1-28. doi:10.1093/ojls/gqu012

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Author Barker, Kit
Title Damages without loss: can Hohfeld help?
Journal name Oxford Journal of Legal Studies   Check publisher's open access policy
ISSN 0143-6503
Publication date 2014-06-01
Year available 2014
Sub-type Article (original research)
DOI 10.1093/ojls/gqu012
Open Access Status
Volume Advance Access
Start page 1
End page 28
Total pages 28
Place of publication Oxford, United Kingdom
Publisher Oxford University Press
Collection year 2015
Language eng
Formatted 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.
Keyword Hohfeld
User fee
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ
Additional Notes First published online: June 1, 2014. To be published in 34(3).

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2015 Collection
TC Beirne School of Law Publications
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Created: Tue, 03 Jun 2014, 15:07:27 EST by Carmen Buttery on behalf of T.C. Beirne School of Law