| Abstract [eng] |
The subject matter of the article is to reveal the issues of an account of profits remedy. The substance of aforementioned remedy is considered in the first part of this article. It is asserted that profit made by wrongful conduct must be claimed in accordance to the essential function of civil liability – compensation. Article 6.249 part 2 of Lithuanian Civil code operates to strip a defendant that amount of profit which coincides with the plaintiff‘s indirect damages. The rest profit made by wrongful conduct is reversed by action in unjustified enrichment. The circumstances in which annotated remedy is available is rationalised and explained in the second part of the article. One of the drawn conclusions is that fault can not be a prerequisite for action based on unjustified enrichment. It is submitted that subsidiarity denotes the subordination of action in unjustified enrichment where another claim in fact offers a claimant a basis of recovery. However, the action in unjustified enrichment must not be excluded when the claimant is barred to recover his loss by the primary action. Third part of this article introduces the essential yardsticks which determine the measurement of profit accrued to the defendant. It is preferred that the profit accrued to the defendant should be measured by actual profit made and, then appropriate, by expense saved. It is proved that the benefit conferred on the defendant is measured either by market value or price received. The measurement depends on the essence of wrongful act. Anything after the first non – subtractive receipt is too remote. On the other hand, defendant‘s direct gain (whether it is the first or subsequent non – subtractive gain) should never be too remote when the wrong was intentional. Only such part of the net profits that the infringer has made from the infringement are recoverable. Infringer cannot reduce or avoid liability by showing he could have achieved the same goal and still have the claimant equally if he had taken a different, but non – infringing, course. It is submitted that defendant‘s benefit should be valued at the time of receipt. Contrary to the dominanting position in England law and German law, it is argued in this article that right – holder has a burden to prove a net profit figure. |
