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The Disgorgement Interest In Contract Law, Melvin A. Eisenberg
The Disgorgement Interest In Contract Law, Melvin A. Eisenberg
Melvin A. Eisenberg
Restatement Second of Contracts provided that contract law serves to protect one or more of three interests: the expectation interest, the reliance interest, and the restitution interest. There is, however, a fourth interest that contract law should and does protect: the disgorgement interest, which is the promisee's interest in requiring the promisor to disgorge a gain that was made possible by the promisor's breach, but did not consist of a benefit conferred on the promisor by the promisee. It is not clear why Restatement Second excluded the disgorgement interest. Perhaps the drafters believed that this position was compelled by positive …
The Duty Of Good Faith In Corporate Law, Melvin A. Eisenberg
The Duty Of Good Faith In Corporate Law, Melvin A. Eisenberg
Melvin A. Eisenberg
An important development in corporate law is the recent explicit recognition, in a series of Delaware cases, that corporate managers owe a fiduciary duty of good faith in addition to their traditional duties of care and loyalty. The duty of good faith was not created by those cases. On the contrary, the duty has long been explicit under the statutes--for example, in statutory provisions that require directors to act in good faith, and in provisions concerning indemnification. The duty of good faith has also long existed implicitly in the case law--for example, in the formulation of the business judgment rule …