When we look into the sphere of private law theory, utmost importance has been given to the remedy aspect of it. In recent tort law developments the area of English Unjust Enrichment law has been increasingly concentrated on. Conventionally, restitution was the only gain-based remedy, but in present times the internal feature of private law has paved way for other gain-based remedies to be adopted. The most widely used remedy is however the concept of compensation, a loss-based remedy. Professor Weinrib’s theory of the private law, justifies the rational extension of gain-based remedies without distorting already established doctrines, nor rupturing the division of Law and Equity.
This essay presents a detailed analysis of the Shakespearean…show more content… This essentially means that it aims to put the parties in the same place that they were, prior to the transaction. It attempts to correct the injustice that the defendant inflicted on the plaintiff thus providing a remedy for the wrong done. Another important aspect of corrective justice is correlative rights and duties. Weinrib insights that corrective justice works on the basis of the correlation between gain and loss i.e similar to the general theory of private law, a breach of duty causes harm to the plaintiff, and one party realizes a gain while the other realises a loss. On the other hand distributive justice does not wait for an injustice to happen. It distributes the resource available in a fair and just manner taking into consideration the economic status and needs of the people. It is a system in which all the participants receive their due share in proportional equality. Distributive justice is hence a more wider concept than corrective justice, it is not a form of justice that prevails in our legal system but is is inherently present in the policies and framework of our governments decisions. Corrective justice hence exists independently of distributive justice as rightly discussed in the case of Bhopal Gas…show more content… Professor Weinrib maintains that this structure is informed by corrective justice. He asserts that corrective justice facilitates an internally coherent understanding of the private law that simultaneously identifies what unifies the private law relationship, and what sets it apart from other legal orderings. It is from the perspective of Professor Weinrib’s understanding of the private law that the following analysis of a similar breach of contract case proceeds.
The Shakespearean case Antonio v Shylock is a breach of contract case. The case should be understood in a three fold manner: 1. If there was a breach of contract. 2. If the remedy stipulated for the consequences of the breach forth by the plaintiff 3.The correct legal remedy. Professor Weinrib’s principles on private law will provide us a plausible remedy for the case at hand. The first principle of private law that can be used to understand the case is the central doctrine of the law of contracts that gives two parties the right to mutually agree to act upon a