Restitution of Gains from Profit-making Wrongs

The law of unjustified enrichment is about achieving corrective justice, and the aim of my project is about developing a more perfect way of attaining this goal by investigating the phenomenon of enrichment flowing from the invasion of another’s rights. It is concerned with how the law regulates whether, and if so to what extent, there should be disgorgement of profits that were made by appropriating a resource belonging to another without that person’s consent – such as, for example, where someone profits from invading property, or appropriating intellectual property, or infringing personality rights. South African law, like many other legal systems, is clear about compensating harm caused in situations such as these, but very unclear about when it is apposite to order that gains or profits should be surrendered to the person whose rights have been invaded. My purpose is (i) to develop a theoretical model, drawing on a generative typology developed in Germany, to demarcate those instances in which this form of enrichment liability should be recognised; and (ii) to determine how to implement claims in practice in those instances in which it is deemed that a claim is theoretically desirable.