c3 general Flashcards
types of discharge
perfomance: complete + exact; substantial; partial
frustration = fail to perform due to no fault of either party - no liability for failure
breach = failure to perform will lead to remedies for breaching a contract
types of performance discharges
complete and exact
substantial - damages may still be payable
partial - if the contract is severable
define: quantum meruit
claim to cover the amount paid for the amount of work already completed
anticipatory breach of contract - actions by other party
indicate in advance
other party can either (if it is serious):
-treat the contract as discharged immediately and sue for damages
-allow the contract to continue until there is an actual breach
repudiatory breach
one party breaches contract
UCTA = who does it apply to
unfair clause act = business2business
which way will the courts interpret any ambiguity in an exclusion court?
they will favour the party not relying on it
3 types of injunctions
mandatory injunction - take positive steps to undo something (ie demolish a building)
prohibitory injunction - observe a negative promise made (ie only manage 1 boyband)
asset-freezing injunction - stop selling or disposing of key assets
remedies: specific performance
court may make a discretionary order for a specific performance - orders the deference to perform his part of the contract instead of letting him ‘buy himself out’
awarded when:
- damages are not an adequate remedy
- it would not require supervision of the performance
- not for a contract of personal service (ie employment)
in what scenario can mental distress/damages for enjoyment be claimed?
only when the purpose of the contract is for the provision of enjoyment
is the claimant required to take all steps to reduce or mitigate their loss?
no - only REASONABLE steps - not ones which carry undue risk or that are discreditable
2 ways of measuring damage
- expectation interest (common) - to put the person in the position they would be in had the contract not been breached
- reliance interest - to put the claimant in the position he would have been in had he not relied on the contract (situs where it is impossible to tell what the contract would result in - think: major actor pulling out of a contract)
prohibitory injunction vs mandatory injunction vs specific performance
prohibitory = stop
mandatory = undo ie demolish a building
specific performance = do something
Unfair Contracts Terms Act 1977
B2B
reliance interest
claimant is seeking to reclaim money they have wasted in performing a contract that the defendant has breached - protect their reliance interest
expectation interest
the amount of money needed to put the claimant in the position they would have achieved if the contract has been performed - protects their expectation interest
remedy - common law or equitable law
equitable law
remedies : specific performance or injunctions
damages - common law or equitable law
common law
damages - awarded for actual financial loss
based on:
-expectation interest = to put the person in the position he would have been in if the contract had been performed
-reliance interest = to put the claimant in the position he would have been if he had not relied on the contract
mental distress + damages for loss of enjoyment may be recoverable where the principle purpose of the contract is the provision of enjoyment
positive promise - remedy (injunction)
mandatory injunction
negative promise - remedy (injunction)
prohibitory injunction
liquidated damages vs penalty clause
liquidated damages - a pre estimate of potential damage written into the contract
-effective provided it is a genuine attempt to pre estimate the likely loss
penalty clause - where the liquidated damages are excessive, the penalty clause is not enforceable
UCTA : clause which attempts to exclude or restrict liability for death or personal injury relying from negligence
void
UCTA : clause which attempts to exclude or restrict liability for other loss or damage arising from negligence
void unless it can be shown to be reasonable (statutory test of reasonabless)
UCTA - contracts of sale/hire purchase - a clause that purports to exclude or limit liability for breach of the undertakings as to title of the seller or owner, implied by the Sale of Goods Act
void
