Contract 5 - Damages Flashcards
Expectation and reliance loss
Compare with after breach and where contract would’ve been properly performed.
(Expectation loss or ‘loss of bargain).
Reliance loss -
expenses incurred because of reliance on contract being performed.
Types of loss recoverable
Pecuniary - money
If can establish lost X amount, can get X in way of damages.
Non-pecuniary - pain and suffering etc..
Damages for disappointment or mental distress (only where object to
Jarvis V Swans Tours (1973).
Remoteness of damage -
very improbable, would be unfair.
Remoteness of loss -
Particular type of loss in reasonable contemplation of parties as being likely consequence of breach.
If type - does not matter degree.
Mitigation of loss
Take reasonable steps to mitigate breach.
Not allowed to claim for part that was due to their failure to take reasonable steps to mitigate loss.
- Burden on D to show.
- Acted reasonably can claim, even if reasonable steps did not actually mitigate.
Quantification
Cost of reinstatement ‘cost of cure’
Defective goods - difference between value as they are and what was expected
Ruxley - Cost of cure - unreasonable in relation to benefit obtained (swimming pool height).
‘Loss of amenity’
-If had been critical - would award full cost of cure.
Specified damages and penalty clauses -if broken and both parties willing to abide, innocent may not have to prove extent of loss just breach.
Specified damage clause (or liquidated)-
genuine attempt to pre-estimate loss that is caused by breach. Binding.
Penalty -
Disproportionately high. Unenforceable.
Court will assess.
How will court decide which is which?
Circumstances in which rule engaged - penalty if exorbitant alternative to ordinary damages.
Penal or pre-estimate of loss.
Parking eye Ltd -
legitimate interest to meet legitimate cost despite penal clause.
Equitable and other remedies
Action for agreed sum -
actions in debt or actions for price.
Suing for fixed amount of money.
Date must be due.
Specific performance -
if damages not adequate.
Not for services usually or goods.
Just and equitable
Any disproportionate hardship to defendant.
Injunction -
Discretion, damages inadequate.
Not ordered where special performance cannot be compelled.
Page One Records - manager, could not be compelled due to fidcuiary relationship.
Restitution -
prevent unjust enrichment.
Paid where total failure of consideration.- if in breach can bring restitution. Total failure not done any part.
One party done for other and wants to be compensated for work done.
If need more money to buy elsewhere claim damages as well.
Compensation for work done or goods supplied
Contract has been broken -
where part done - restitution for work done (in part).
Reasonable sum OR damages.
Contract never formed -
Started before
Entitled to reasonable sum.
Restitutionary damages
Gains made that do not necessarily reflect loss to C.
Wrongdoers profits (confidential information) Attorney General v Blake (2021).
No loss as such but a gain for D.
Wrotham Park estate -
lost chance to renegotiate fee - no discernible financial loss.
Such as reasonable for quid pro quo for relaxing covenants.
Non-defaulting third party may be able to claim against a third party in event of breach
Guarantee -
agrees to discharge debt in event.
Must be evidenced in some form of writing
indemnities -
DO not have to be in writing.
Personal undertaking compared to a if he does not I will.
