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ICAEW Law 02: Termination of contract. > 02. Remedies. > Flashcards

02. Remedies. Flashcards

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1
Q

Damages are usually intended …

A

to put the contracting parties in the position they would have been had the contract been performed.

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2
Q

Alternative dispute resolution.

A

Processes such as negotiation, arbitration, mediation, ajudication or expert determination intended to avoid the expense of court hearings.

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3
Q

Processes such as negotiation, arbitration, mediation, ajudication or expert determination intended to avoid the expense of court hearings.

A

Alternative dispute resolution.

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4
Q

If … are an adequate remedy then …. will be awarded.

A

damages

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5
Q

Equitable remedies may only be awarded …

A

at the discretion of the court.

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6
Q

Issues regarding a claim for damages: R* (AN, ItCoBP), M (EI / RI), MD?, MoL?

A

remoteness of damage

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7
Q

Issues regarding a claim for damages: R (AN*, ItCoBP), M (EI / RI), MD?, MoL?

A

arising naturally from the breach

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8
Q

Issues regarding a claim for damages: R (AN, ItCoBP*), M (EI / RI), MD?, MoL?

A

in the contemplation of BOTH parties

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9
Q

Issues regarding a claim for damages: R (AN, ItCoBP), M* (EI / RI), MD?, MoL?

A

measure

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10
Q

Issues regarding a claim for damages: R (AN, ItCoBP), M (EI* / RI), MD?, MoL?

A

expectation interest

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11
Q

Issues regarding a claim for damages: R (AN, ItCoBP), M (EI / RI*), MD?, MoL?

A

reliance interest

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12
Q

Issues regarding a claim for damages: R (AN, ItCoBP), M (EI / RI), MD?*, MoL?

A

mental distress

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13
Q

Issues regarding a claim for damages: R (AN, ItCoBP), M (EI / RI), MD?, MoL?*

A

mitigation of loss

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14
Q

Breaking the chain of causation.

A

Establishing that damage is too remote from a breach of contract to be claimable.

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15
Q

Establishing that damage is too remote from a breach of contract to be claimable.

A

Breaking the chain of causation.

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16
Q

If damage is neither a natural consequence of breach nor in the reasonable contemplation of both parties, including a mill being out of action due to a delay in the transportation of a mill shaft …

A

then it is too remote to be claimable.

The chain of causation has been broken.

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17
Q

If a claimant is unaware of a breach of contract, including a synthetic fibre plant supplied with contaminated butane gas, …

A

only subsequent recklessness may beak the chain of causation.

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18
Q

If losses are exceptional or abnormal, including the loss of dyeing contracts due to the late installation of a boiler, …

A

then they are only claimable if the breaching party knew of their existence.

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19
Q

A party suffering a breach of contract is required to … their losses.

A

mitigate

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20
Q

Damages sufficient to satisfy the expectation interest of an injured party are those required to …

A

put them in the position they would have been had the contract been performed.

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21
Q

Damages sufficient to satisfy the … interest of an injured party are those required to put them in the position they would have been had the contract been performed.

A

expectation

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22
Q

Damages sufficient to satisfy the reliance interest of an injured party are those required to …

A

put them in the position they would have been had they not relied upon the contract.

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23
Q

Damages sufficient to satisfy the … interest of an injured party are those required to put them in the position they would have been had they not relied upon the contract.

A

reliance

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24
Q

Speculative profits, including those from the production of a TV film, …

A

will not be awarded as damages.

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25
Q

Reliance cases are usually claims for …

A

wasted expenditure.

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26
Q

Expectation cases are usually claims for …

A

the cost of putting things right under the contract.

27
Q

Damages may never …

A

put a claimant in a better position than they would have been had the contract been performed.

28
Q

If a party would make a loss in a contract, including one for the chartering of a ship, …

A

then damages may not put them in a better position than they would be had the contract been performed.

29
Q

If an injured party does not attempt to mitigate their loss, including the situation in which a purchaser of goods on credit buys goods elsewhere at a higher price, …

A

then they will not be able to claim damages in respect of any additional expenditure.

30
Q

If damages sufficient to put the injured party in the position they would be had the contract been performed, including increasing the depth of a swimming pool, are considered excessive …

A

then the court may make an award in respect of the loss of amenity.

31
Q

Damages are usually only awarded for …

A

actual financial loss.

32
Q

In extremely rare cases, such as a holiday that is not up to specification, …

A

the court may award damages in respect of the mental distress.

33
Q

When determining the amount of damages, it is assumed that the claimant will take all reasonable steps to …

A

mitigate their loss.

34
Q

Liquidated damages.

A

A fixed sum or formula agreed upon by the parties to a contract in an attempt to make a genuine determination of the damages payable upon its breach.

35
Q

A fixed sum or formula agreed upon by the parties to a contract in an attempt to make a genuine determination of the damages payable upon its breach.

A

Liquidated damages.

36
Q

Liquidated damages clauses are not enforceable if they are a de facto …

A

penalty clause.

37
Q

Liquidated damages imposing a detriment on a contract breaker which are in proportion to the legitimate interest of the innocent party, for example those in respect of breach of a fiduciary duty in respect of competition …

A

are likely to be enforceable.

38
Q

Liquidated damages imposing a detriment on a contract breaker which are in proportion to the legitimate interest of the innocent party, for example those in respect of breach of overstaying at a car park …

A

are likely to be enforceable.

39
Q

Penalty clause.

A

A secondary obligation which imposes a detriment on a contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.

40
Q

A secondary obligation which imposes a detriment on a contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.

A

Penalty clause.

41
Q

Specific performance will never be granted in respect of …

A

personal service contracts.

42
Q

Equitable remedies will only be awarded …

A

when damages are not deemed adequate by the court.

43
Q

The most common situation of a court order for specific performance is in relation to contracts regarding …

A

land.

44
Q

Equitable remedies are used in situations where the defendant may potentially prefer to pay damages as a way of …

A

buying themselves out of a contract.

45
Q

Types of injunction: M*, P, AF (M)

A

mandatory

46
Q

Types of injunction: M, P*, AF (M)

A

prohibitory

47
Q

Types of injunction: M, P, AF* (M)

A

asset freezing

48
Q

Types of injunction: M, P, AF (M)*

A

Mareva

49
Q

A … injunction directs the defendant to take steps to undo something that they have already done.

A

mandatory

50
Q

A mandatory injunction …

A

directs the defendant to take steps to undo something that they have already done.

51
Q

A … injunction prevents the defendant from doing something that they intend to do or continue to do.

A

prohibitory

52
Q

A prohibitory injunction …

A

prevents the defendant from doing something that they intend to do or continue to do.

53
Q

An … injunction prevents the defendant from putting wealth out of reach.

A

asset freezing

54
Q

An asset freezing injunction …

A

prevents the defendant from putting wealth out of reach.

55
Q

A party who has a frequent history of trade, including someone storing orange juice in warehouse, …

A

is expected to be aware of any exclusion clause within the contract.

56
Q

A party who has an occasional, though regular, course of trade, including getting their car serviced at the same garage …

A

will NOT be deemed to be aware of an exclusion clause, particularly one excluding liability for damage to their car by fire.

57
Q

A party who has a frequent history of trade, including someone buying feed for game birds, …

A

is expected to be aware of any exclusion clause within the contract.

58
Q

If a party does not sue and then an intervening act, such as the outbreak of war, frustrates the contract …

A

then they lose the opportunity to do so.

59
Q

A car dealer faced with a customer refusing to pay for a car which is in plentiful supply …

A

is likely to be successful in an action for damages re. the lost profit.

60
Q

A car dealer faced with a customer refusing to pay for a car which is in short supply …

A

is likely to be able to fully mitigate their loss and therefore unlikely to succeed in an action for damages against the customer.

61
Q

A party having substantially performed the requirments of the contract, for example redecorating a house yet being refused ANY payment due to snags …

A

is likely to succeed in an action for quantum meruit.

62
Q

A party in breach of a personal services contract, including one for a film performance …

A

is unlikely to be required to ‘specifically perform’ but may be injuncted against working elsewhere if the contract so provides.

63
Q

The onus in demonstrating that all reasonable steps have not been taken in order to mitigate the loss resulting from a breach of contract is on the …

A

defendant.

64
Q

The duty to mitigate arises only when …

A

the injured party accepts that a breach has occurred.

ICAEW Law 02: Termination of contract. (5 decks)

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