Contract 10 - Remedies Flashcards

1
Q

What remedies are there for breach of contract?

A
  • Compensatory damages ๐Ÿ’ต
  • Specific Performance ๐Ÿซต
  • Injunction โœ‹
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2
Q

What is the default approach to damages and 2 ways of calculating it?

A

Put innocent party in position they wouldโ€™ve been in had the contract been performed
1. Expectation Interest ๐Ÿ‘‰
2. Reliance Interest ๐Ÿ‘ˆ

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3
Q

What are the two methods of calculating the damages?

A
  • Expectation used where profit is ascertainable - looks forwards to profit ๐Ÿ‘‰
  • Reliance used where profit is uncertain - looks back to costs incurred ๐Ÿ‘ˆ
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4
Q

What are the different ways of calculating expectation interest ๐Ÿ‘‰

A
  1. Cost of Cure: cost of substitute/remedial work required - C must act reasonably ๐Ÿ‘ทโ€โ™‚๏ธ๐Ÿ’Š
  2. Diminuition in value: difference in value between performance received & performance promised ๐Ÿ ๐Ÿ“‰๐Ÿš๏ธ
  3. Loss of Amenity: where loss is not in economic value, but still has value to them ๐Ÿ’ฉ
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5
Q

What are the cases for calculating the expectation interest:
- Cost of Cure ๐Ÿ‘ทโ€โ™‚๏ธ๐Ÿ’Š
- Diminution of value ๐Ÿ ๐Ÿ“‰๐Ÿš๏ธ
- Loss of amenity ๐Ÿ’ฉ

A

๐Ÿ’Š = Defective works
Must act reasonably, knocking down and rebuilding a house is not reasonable for aesthetic issues ๐Ÿ ๐Ÿ’ฅ๐Ÿ 
(๐Ÿ’Š&๐Ÿ ๐Ÿš๏ธ often same result)

๐Ÿ’ฉ
Cost of rectification out it proportion to benefit obtained.
Pool too shallow, ๐ŸŠ๐Ÿ˜ญ๐Ÿคซ๐Ÿ’ฐ

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6
Q

How is expectation interest calculated?

A

Expected profit + expenses incurred

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7
Q

What is reliance interest and when used?
๐Ÿ‘ˆ

A

Putting C in position they wouldโ€™ve been in had contract never been entered into

  • used where expectation damages are highly speculative ๐Ÿคทโ€โ™€๏ธ
  • recover preparation expenses ๐Ÿค“
  • expenses prior to breach ๐Ÿ‘ท๐Ÿ’ฅ
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8
Q

What is the reliance interest?
๐Ÿ‘ˆ

A
  • Used when expectation is highly speculative. ๐Ÿคทโ€โ™€๏ธ
  • Puts back into position would have been. ๐Ÿ”‚
  • only applies to wasted costs ๐Ÿ—‘๏ธ
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9
Q

What are the wasted cost requirements for reliance interest?
๐Ÿ‘ˆ

A
  • C wouldโ€™ve recouped those expenses had contract been properly performed
    ๐Ÿ’ฐ๐Ÿ‘€
  • D must prove this wouldnโ€™t be the case
    ๐Ÿคฌ๐Ÿ’ฐ๐Ÿ‘€
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10
Q

Whatโ€™s the case on reliance interest?
๐Ÿ‘ˆ

A

โญ๏ธ
Star pulled out of film at last minute. Claimed for costs of director even though incurred before contract with star. โœ…

๐ŸŽฅ๐Ÿ’ƒ๐Ÿคฌ๐Ÿ’ฐ ๐Ÿ˜Ž

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11
Q

Whatโ€™s the case on wasted costs for reliance interest?
๐Ÿ‘ˆ๐Ÿ—‘๏ธ

A

Landlord wrongly terminated mechanic Tenantโ€™s lease early. T tried to sue for their fixed machinery left in the property. As T couldnโ€™t have taken the machinery under the terms of the lease anyway, there was no loss

๐Ÿ‘ทโ€โ™‚๏ธ๐Ÿญโš™๏ธ๐ŸŽฉ๐Ÿคฌ๐Ÿคช๐Ÿ˜ญ

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12
Q

What losses have special rules and exceptions?

A
  1. Mental Distress๐Ÿคช: damages not awarded unless a major object of contract ๐Ÿ“was to provide pleasure, relaxation & peace of mind ๐Ÿง˜โ€โ™€๏ธ
    .
  2. Loss of Reputation๐Ÿ˜Ž๐Ÿ˜ญ: damages not awarded unless an ๐Ÿง‘โ€๐Ÿณ employment contract contains implied term of trust and confidence such that employer must carry out work in honest way ๐Ÿ˜‡
    .
  3. Loss of Chance๐ŸŽฒ: recoverable in damages if lost chance is quantifiable in monetary terms & there was a real chance opportunity may have come to fruition (gameshow) ๐ŸŽฐ
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13
Q

Can damages be recovered on behalf of another?

A

No

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14
Q

What is a liquidated damages clause?

A

Stipulates a certain sum payable on particular breach
๐Ÿ’ฅ๐Ÿ’ต

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15
Q

How are liquidated damages clauses interpreted?

A

Starting point = upheld

Courts intervene will strike it out where itโ€™s a
- penalty clause โšฝ๏ธ,
AND
- C will be entitled to unliquidated damages ๐Ÿ’ต

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16
Q

What is the test for determining whether a liquidated damages clause is a penalty clause?

A
  1. Primary๐Ÿฅ‡ or Secondary ๐ŸฅˆObligation?
  • Primary ๐Ÿฅ‡= part of primary obligations of contract;
  • Secondary ๐Ÿฅˆ= obligation triggered by breach to compensate
  1. If secondary ๐Ÿฅˆ, clause is a penalty โšฝ๏ธ if it imposes a detriment out of all proportion to any legitimate interest โš–๏ธ
17
Q

What are the cases on liquidated damages

A

๐ŸŽฉ๐Ÿ˜ˆ๐Ÿฅ‡๐Ÿ“
- B sold business to A. B not to compete with A or else wonโ€™t get all the cash A owed B for business & A will be able to buy Bโ€™s remaining shares at much reduced price. Primary obligation just a price adjustment and mechanism for allowing A and B to part ways.

๐Ÿš™๐Ÿช™๐Ÿฅˆ๐Ÿ˜‡
- B overstayed his parking and was charged ยฃ85. Court agreed this was secondary obligation triggered by breach and therefore a penalty. But penalty not excessive.

18
Q

What determines whether damage is too remote?
๐Ÿ”ญ

A

Damages should be:
- Normal risk ๐Ÿฅฑi.e. incurred in โ€œthe usual course of thingsโ€
- Special risk โญ๏ธ i.e. such amount as the parties would have contemplated, at the time of the contract, as the probable result of breaching it.๐Ÿง

19
Q

What cases concern remoteness of damage?
๐Ÿ”ญ

A

Repair Mill shaft, D was negligent causing delay and C to lose business
D not aware that C had no spare shaft or that shaft needed for business - no claim.
๐Ÿž๐Ÿ†โญ๏ธ๐Ÿ˜ญ

C caused Laundromat delay in getting boiler:
- normal loss of trade - allowable
- special loss of trade from unique contracts D not aware of - not allowable
๐Ÿ‘•โš™๏ธ๐Ÿฅฑ/โญ๏ธ

20
Q

What is the case on reasonable mitigation?

A

Supplier wrongly thought Buyer hadnโ€™t paid for silks and so asked for cash on original terms but broke the contract in so doing. Buyer refused and sued Supplier including increase in silk price. Buyer could not claim for increase in price as should have mitigated loss by taking Buyers up on their offer.

๐Ÿ‘˜๐Ÿ’ฐ๐Ÿคฌ๐Ÿ˜ญ

21
Q

What is specific performance and when is it awarded?
๐Ÿซต

A
  • Requires D to carry out its obligations under a positive term of the contract ๐Ÿคฒ
  • Only used in exceptional cases, where damages are not an appropriate/adequate remedy ๐Ÿ’ตโŒ
  • Equitable principles apply โš–๏ธ
22
Q

What is an advantage of specific performance?
๐Ÿซต

A

Breach of SP has more severe consequences than breach of contract
๐Ÿ—ก๏ธ

23
Q

When will specific performance not be awarded?
๐Ÿซต

A

Not awarded where:
- it would cause undue hardship ๐Ÿค’
- no consideration given even by deed ๐Ÿ’ฐ

Not awarded for breach of:

  • employment contracts, ๐Ÿง‘โ€๐Ÿณ
  • constant court supervision required ๐Ÿ‘จโ€โš–๏ธ
  • contract not binding on both parties ๐Ÿ“โ†”๏ธ
24
Q

What is a prohibitory and interim prohibitory injunction?
โœ‹

A
  • Prohibitory Injunction: court order restraining a party from breaching a negative term
  • Interim: temporary order to protect a party until a matter reaches trial

Equitable principles apply, only granted where
- Just and convenient
AND
- damages not appropriate

25
Q

What is the effect of not complying with an injunction?

A

Be in contempt of court
๐Ÿ‘ฎโ€โ™€๏ธ

26
Q

What limiting factors are there on damages?

A
  1. Causationโ›“๏ธ: factual (dominant cause) and legal (no NAIs that break chain)
  2. Remoteness๐Ÿ”ญ: loss of a type ordinarily and naturally arising from breach; and if losses are too unusual, D must have had sufficient actual knowledge to be aware of risks of these losses
  3. Mitigation๐Ÿ˜‡: injured party should take reasonable steps to minimise effect of breach - no obligation to but losses attributable to failure to do so arenโ€™t recoverable
27
Q

What is restitution interest and the requirements for it?
๐Ÿ˜ˆ๐Ÿ’ต๐Ÿ˜ญ

A

Cโ€™s interest they have in restoration of benefits which defaulting party has acquired at its expense - i.e. account for profits

  1. Inadequacy of other remedies ๐Ÿ˜ก
  2. C has legitimate interest in depriving D of their profit๐Ÿ˜‡

Book deal and secrets.

28
Q

What are the implications of a guarantee?

A

Promise by G to ensure that A carries out his obligations or step in a do them if A doesnโ€™t
- Gโ€™s obligation ceases when Aโ€™s does ๐Ÿชข
- If contract between A & B changes G will be discharged ๐Ÿ•Š๏ธ
- Guarantee must be in writing and signed by G ๐Ÿ“

29
Q

What are the implications of an indemnity?

A

Promise by I to reimburse B if they suffer loss because of A.
- Iโ€™s obligation does not ceases when Aโ€™s does โ›“๏ธ
- If contract between A & B changes it will be remain ๐Ÿฆค