미국법상 기회주의적 계약위반에 대한 토출(吐出) 책임

Under the Korean Civil law, a party can generally enforce the contractual rights through damages and specific performance when the other party breaches the contract, so something other than these contractual remedies has been hardly discussed. On the other hand, the U.S. law provides opportunistic breach rule under the law of restitution which allows a party to seek the disgorgement of the other party's profits when such profits are bigger than the damages. At the glance of this rule, one might think it could cause the conflicts with the restitution subordinate to contract and the concept of efficient breach. However, opportunistic breach is justified because it is some kind of conscious advantage-taking and can be characterized as “intentional and profitable interference with another person's legally protected interests", which falls under the category of wrongs under the U.S. restitution law allowing disgorgement as a remedy. Furthermore, the function of contract-reinforcing provides another rationale for this rule. Opportunistic breach may occur when “an intentional breach of contract would bring profit to the promisor who did not perform the contract and the available remedies for damages are an inadequate protection". Inadequacy of damages can be determined by deciding whether damages can acquire the full equivalent of the promised performance in the substitute transaction. Equivalence between specific performance and disgorgement enables us to use the very standard for deciding whether it is appropriate to allow specific performance for a certain case. "Profit which is realized as a result of breach of contract" that is subject to disgorgement includes gains which motivated the breach of contract but it does not exceed it. Therefore, it does not have the characteristics of punitive damage.