9 - Remedies

Question 1

types of remedies

Answer 1

Compensatory Damages
Equitable remedies
Termination of Contract for breach

Question 2

Damages –

Answer 2

normally in the form of a cash compensation payment, to put the injured party financially into the position they would have been in had the contract been performed

Question 3

Categories of recoverable los

Answer 3

The main type of common law remedy is damages. There are 2 types:
Liquidated
Unliquidated

Question 4

Liquidated damages

Answer 4

operate when both parties to the contract have, at the time of contracting, fixed an amount of damages in a clause in the contract that would be paid should there be a breach of contract
The amount fixed could be ignored by the court unless it is fair and proper compared to the loss

Question 5

Dunlop Tyre v New Garage and Motor Co 1914

Answer 5

D sold tyres to X, a dealer who then resold the tyres to S, a retailer below the agreed price enforced by D

Question 6

Unliquidated Damages

Answer 6

Where there is no fixed amount of damages, the courts can fix an amount based on the actual loss called unliquidated damages
The courts look closely and try to ensure that the C is put in the position they would have been in if the breach hadn’t occurred

Question 7

Hadley v Baxendale 1854 –

Answer 7

any damages should be fair and reasonable and in line with what would normally happen
Delay in transporting a mill shaft. C sued D for the losses as a result from the day
Couldn’t claim as a mill owner should normally have a spare
D wasn’t aware that the mill owner couldn’t work without the shaft so it was unfair

Question 8

mitigation of loss

Answer 8

the c should have tries to lessen or mitigate any actua or potential loss

Question 9

Pilkington v Wood 1953

Answer 9

C sued a solicitor for damages after receiving negligent advice when buying a house. The solicitor said he should have sued the vendor to mitigate the loss
Court held that it wasn’t common sense for the C to sue a third party

Question 10

types of equitable remedies

Answer 10

Specific performance
Rescission

Question 11

specific perfromance

Answer 11

This forces the D to carry out their agreed obligations under contract
The court can order specific performance and/or damages
Orders for specific performance are rare and courts will only enforce when it is fair to do so

Question 12

De Francesco v Barnum 1890

Answer 12

Young dancer entered into a contract of apprenticeship where she didn’t get paid and she wasn’t allowed to get paid from any other employment either. She broke her contract
Court refused to order an injunction or a specific performance because the contract was so unfair to the dancer

Question 13

recission

Answer 13

This is an equitable right where a contract is set aside
This is to bring the parties back (as best as possible) to the position they were in before they entered the contract – as though the contract had never been entered into

Question 14

when does a breach in a contract occur

Answer 14

A party to the contract does not perform their obligations or
The party fails to reach the standards set or expected in the contract, or
The party unlawfully repudiates the contract

Question 15

the consoquence of a breach depnded upon the type of breach

Answer 15

• The consequence of the breach depend upon the type of term breached
• Breach of condition – injured party can sue for damage and/or repudiation of contract
• Breach of warranty – the injured party can sue for damages only
• Breach of an innominate term - injured party can sue immediately or wait until the contract performance date and the sue