Document Type : Research Paper
Authors
1
Associate professor of Private Law, Faculty of Law and Political Science, Allameh Tabataba'i University, Tehran, Iran
2
Assistant professor of Private Law, Faculty of Law and Political Science, Allameh Tabataba'i University, Tehran, Iran
3
Ph.D. Candidate of Private Law, Faculty of Law and Political Science, Allame Tabataba'i University, Tehran, Iran
10.22054/jplr.2026.92235.3007
Abstract
Disgorgement, as a modern remedy, has gained expanding recognition in Anglo-American common law. Focusing on stripping the wrongdoer of their illicit gains, this remedy aims to prevent unjust enrichment and to supplement the traditional functions of compensatory damages in civil liability. In relation to this institution, the primary question is: under what conditions can a right-holder benefit from this remedy? Furthermore, in which areas of liability (tortious or contractual) is it possible to resort to such a sanction? Applying a descriptive-analytical approach, this study examines the necessary conditions and elements for claiming disgorgement of profits in the domains of tortious and contractual liability under Anglo-American common law and Iranian law. The findings indicate that the application of disgorgement is contingent upon satisfying conditions such as the infringement of a legal or contractual right, the acquisition of a benefit by the infringer, the occurrence of harm/loss to the right-holder, establishing causation between the infringement and the acquired benefit, and the inadequacy of other remedies. Moreover, the obligee’s ‘legitimate expectation’ in contractual liability, and considerations of preventing unjust enrichment and deterrence in tortious liability, play a fundamental role in justifying this legal remedy.
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