MBE Rules · Remedies
Waiver of Tort
Waiver of tort (assumpsit)
The rule
A plaintiff may waive the tort and sue in assumpsit for restitution of benefits the wrongdoer gained (conversion proceeds), choosing the defendant's gain over her own loss as the measure.
In plain English
Waiver of tort allows a plaintiff to forgo a traditional tort claim and instead sue for the value of benefits that the wrongdoer received from their wrongful act. This means the plaintiff can seek restitution based on the defendant's gain rather than their own loss.
Worked example
A company discovers that a competitor has been using its patented technology without permission, generating $1 million in profits. Instead of suing for damages based on its own losses, the company opts to waive the tort and sues for the $1 million the competitor gained. The court awards the company the full amount of the competitor's profits.
Memory hook
Choose the wrongdoer's gain over your own loss with waiver of tort.
The trap
Exams may present scenarios where students are tempted to calculate their own losses instead of focusing on the defendant's gains, leading to incorrect conclusions. Pay close attention to the option of waiving the tort.
How examiners test it
Questions often involve a scenario where a plaintiff has suffered a loss due to a defendant's wrongful act, and the exam will test whether the plaintiff can choose to pursue the defendant's profits instead of their own damages.
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