# Punitive Disentitlement Within Private Law?

## TL;DR

This paper explores whether private law can punish through 'punitive disentitlement,' where legal rights are removed due to misconduct, and evaluates its implications.

## Contribution

Introduces and analyzes the concept of 'punitive disentitlement' as a novel form of punishment in private law.

## Key findings

- Punitive disentitlement exists in various areas of private law, such as property and torts.
- It avoids some normative objections to punitive damages but faces its own challenges.
- The paper urges caution in the continued use of punitive disentitlement.

## Abstract

Does private law punish? Should it? I question whether private law punishes in a form other than through a court order of punitive damages, by exploring a less obvious form of punishment to which less attention has been paid—‘punitive disentitlement’—wherein a person is disentitled from a legal right, defence, or other legal advantage they would and should otherwise be entitled to, because of their misconduct. Potential instances are identified and analysed in a broad survey of private law doctrine, including the laws of property, contract, unjust enrichment and torts. The strongest reason for punitive disentitlement is its immunity to a powerful normative objection to punitive damages. Punitive disentitlement is not free from difficulties, however. It inherits some of the difficulties associated with punitive damages; it also runs into a separate set of objections. We should therefore be more alert to, and cautious about, its continued use.