02. Remedies. Flashcards
Damages are usually intended …
to put the contracting parties in the position they would have been had the contract been performed.
Alternative dispute resolution.
Processes such as negotiation, arbitration, mediation, ajudication or expert determination intended to avoid the expense of court hearings.
Processes such as negotiation, arbitration, mediation, ajudication or expert determination intended to avoid the expense of court hearings.
Alternative dispute resolution.
If … are an adequate remedy then …. will be awarded.
damages
Equitable remedies may only be awarded …
at the discretion of the court.
Issues regarding a claim for damages: R* (AN, ItCoBP), M (EI / RI), MD?, MoL?
remoteness of damage
Issues regarding a claim for damages: R (AN*, ItCoBP), M (EI / RI), MD?, MoL?
arising naturally from the breach
Issues regarding a claim for damages: R (AN, ItCoBP*), M (EI / RI), MD?, MoL?
in the contemplation of BOTH parties
Issues regarding a claim for damages: R (AN, ItCoBP), M* (EI / RI), MD?, MoL?
measure
Issues regarding a claim for damages: R (AN, ItCoBP), M (EI* / RI), MD?, MoL?
expectation interest
Issues regarding a claim for damages: R (AN, ItCoBP), M (EI / RI*), MD?, MoL?
reliance interest
Issues regarding a claim for damages: R (AN, ItCoBP), M (EI / RI), MD?*, MoL?
mental distress
Issues regarding a claim for damages: R (AN, ItCoBP), M (EI / RI), MD?, MoL?*
mitigation of loss
Breaking the chain of causation.
Establishing that damage is too remote from a breach of contract to be claimable.
Establishing that damage is too remote from a breach of contract to be claimable.
Breaking the chain of causation.
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 …
then it is too remote to be claimable.
The chain of causation has been broken.
If a claimant is unaware of a breach of contract, including a synthetic fibre plant supplied with contaminated butane gas, …
only subsequent recklessness may beak the chain of causation.
If losses are exceptional or abnormal, including the loss of dyeing contracts due to the late installation of a boiler, …
then they are only claimable if the breaching party knew of their existence.
A party suffering a breach of contract is required to … their losses.
mitigate
Damages sufficient to satisfy the expectation interest of an injured party are those required to …
put them in the position they would have been had the contract been performed.
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.
expectation
Damages sufficient to satisfy the reliance 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.
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.
reliance
Speculative profits, including those from the production of a TV film, …
will not be awarded as damages.
Reliance cases are usually claims for …
wasted expenditure.
Expectation cases are usually claims for …
the cost of putting things right under the contract.
Damages may never …
put a claimant in a better position than they would have been had the contract been performed.
If a party would make a loss in a contract, including one for the chartering of a ship, …
then damages may not put them in a better position than they would be had the contract been performed.
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, …
then they will not be able to claim damages in respect of any additional expenditure.
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 …
then the court may make an award in respect of the loss of amenity.
Damages are usually only awarded for …
actual financial loss.
In extremely rare cases, such as a holiday that is not up to specification, …
the court may award damages in respect of the mental distress.
When determining the amount of damages, it is assumed that the claimant will take all reasonable steps to …
mitigate their loss.
Liquidated damages.
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 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.
Liquidated damages.
Liquidated damages clauses are not enforceable if they are a de facto …
penalty clause.
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 …
are likely to be enforceable.
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 …
are likely to be enforceable.
Penalty clause.
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 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.
Penalty clause.
Specific performance will never be granted in respect of …
personal service contracts.
Equitable remedies will only be awarded …
when damages are not deemed adequate by the court.
The most common situation of a court order for specific performance is in relation to contracts regarding …
land.
Equitable remedies are used in situations where the defendant may potentially prefer to pay damages as a way of …
buying themselves out of a contract.
Types of injunction: M*, P, AF (M)
mandatory
Types of injunction: M, P*, AF (M)
prohibitory
Types of injunction: M, P, AF* (M)
asset freezing
Types of injunction: M, P, AF (M)*
Mareva
A … injunction directs the defendant to take steps to undo something that they have already done.
mandatory
A mandatory injunction …
directs the defendant to take steps to undo something that they have already done.
A … injunction prevents the defendant from doing something that they intend to do or continue to do.
prohibitory
A prohibitory injunction …
prevents the defendant from doing something that they intend to do or continue to do.
An … injunction prevents the defendant from putting wealth out of reach.
asset freezing
An asset freezing injunction …
prevents the defendant from putting wealth out of reach.
A party who has a frequent history of trade, including someone storing orange juice in warehouse, …
is expected to be aware of any exclusion clause within the contract.
A party who has an occasional, though regular, course of trade, including getting their car serviced at the same garage …
will NOT be deemed to be aware of an exclusion clause, particularly one excluding liability for damage to their car by fire.
A party who has a frequent history of trade, including someone buying feed for game birds, …
is expected to be aware of any exclusion clause within the contract.
If a party does not sue and then an intervening act, such as the outbreak of war, frustrates the contract …
then they lose the opportunity to do so.
A car dealer faced with a customer refusing to pay for a car which is in plentiful supply …
is likely to be successful in an action for damages re. the lost profit.
A car dealer faced with a customer refusing to pay for a car which is in short supply …
is likely to be able to fully mitigate their loss and therefore unlikely to succeed in an action for damages against the customer.
A party having substantially performed the requirments of the contract, for example redecorating a house yet being refused ANY payment due to snags …
is likely to succeed in an action for quantum meruit.
A party in breach of a personal services contract, including one for a film performance …
is unlikely to be required to ‘specifically perform’ but may be injuncted against working elsewhere if the contract so provides.
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 …
defendant.
The duty to mitigate arises only when …
the injured party accepts that a breach has occurred.
