8. Contractual Remedies II Flashcards
Action for Price (s.49)
Like specific performance
- compels B to perform B’s duty to pay
- not claiming damages for loss caused by B’s breach (remoteness/mitigation = irrelevant)
S EARNED PRICE –> B MUST PAY
Habton v Nimmo
s. 49 nature of the action:
- NOT LIKE DAMAGES
- S just has to show price is due
IF S has not delivered goods, action for price depends where property lies
- if property with B = B must pay
- if property with S = B no pay
Stein, Forbes v County
s.49 if:
ONE - property has passed (here no)
TWO - price payable irrespective of delivery (here no)
Shell v Elton Cop
ROT clause so property did not pass
- so no s.49 action for price
PST Energy
s.49(2) means even if no delivery, s.49 might apply
Oil Bunkers
held: NOT SOGA CASE
obiter: s.49 is not exhaustive
Castle v Playfood
allowed action for price where property did not pass (because risk passed to B and goods destroyed without fault of S)
White & Carter v McGregor
- D breached
- C did not accept breach and instead kept contract alive and completed his side of the contract
- C successfully brought action for price
ONLY WORKS IF C CAN COMPLETE HIS SIDE OF THE CONTRACT
If D can show C has no legitimate interest in performance = D can resist
Re Wait
court unlikely to order SP for unascertained goods because damages likely adequate
Sky Petroleum v VIP
Exceptionally, if damages are inadequate, maybe SP
here, D was only source of supply and C needs supply to continue business = damages inadequate
Co-Op v Argyll
SP involves court forcing a party to perform so court reluctant to order
- C cannot say he has a right to performance so must be SP
- COMPARE C’S LOSS AND BURDEN ON D
- If burden on D is higher then no SP
AG v Blake
GENERAL POSITION: NO GAIN BASED REMEDY
EXCEPTION: in exceptional cases (spy and gov was C)
FHR v Cedar
receipt bribe/secret commission by agent = held on CT for principal
gain based + proprietary (very unusual)
