Contract Law Second Term - Remedies Flashcards
What are the requirements for C to recover supplied goods/services?
No total failure requirement; contract price may be ceiling but may be allowed more (Loddar v Slowey)
What did Fuller and Perdue include in reliance interest?
Loss of opportunity
Workers Trust v Dojap Investments
Deposit 25%, custom 10%; not allowed to enforce more than proved losses from BoC
Knott v Bolton
Dream home; economic purpose so no damages
Holden Ltd v Bostock
Spending on advertising
Who makes a distinction between restitutionary damages and disgorgement damages?
Professor Edelman
Victoria Laundry v Newman Industries
Boiler, 5 months
What are the two limbs of Hadley v Baxendale for remoteness?
That which flowed naturally from BoC, or in contemplation of parties (actual knowledge)
What case suggested Hoffman supplemented Hadley?
The Sylvia
Jarvis v Swans Tours
House party
C & P Haulage v Middleton
Garage, wrongly ejected but denied reliance
Dunlop Pneumatic v New Garage
Agreed damages; not penalty, which means not ‘extravagant and unconscionable’
Who argued SP should be a general right?
Schwartz
Supershield v Siemens Building Technologies
Ball valve, lever; Hoffman widened Hadley so that losses too remote under Hadley are not by assumption of a contractual duty
What two sources expressly dictate when cost of cure and when diminution?
Building contracts and statute
Farley v Skinner (No.2)
Quiet weekends; subjective test
Why do Bingham and Walker criticise the flexible approach to date of assessment in Nippon Yusen?
Encourages D to delay settlement to take into account subsequent events
What three things can be taken from Dunlop Pneumatic on penalty clauses?
Labels are not decisive, need to be proportionality between serious of breach and sum and reasonableness of estimate at formation
Why did McKendrick not think The Sylvia’s application of Hoffman in The Achilleas was correct?
Hoffman thought Hadley to have a ‘high degree of indeterminacy’, so trying to replace, not supplement it
Ruxley Electronics v Forsyth
Shallow pool
What interest does contract law mainly try to protect?
Expectation
Parsons (Livestock) v Uttley Ingham
Food storage hopper
MFM Restaurants v Fish & Co Restaurants
CoA of Singapore only considered Hoffman’s Achilleas in as far as it fit under limbs of Hadley
S.18 Landlord and Tenant Act 1927 on damages
Expressly stipulate diminution
Photo Production v Securicor Transport
Compensatory principle of adjudging penalty clauses
Hamilton Jones v Davis & Snape
Tunisia
Makdessi v Cavendish Square on penalty clauses
blatant interference with freedom of contract
According to Edelman, how could Blake and Wrotham Park be distinguished?
Blake = disgorgement, Wrotham Park = restitutionary.
What were the limitations given by Farley on Watts v Morrow?
Change cannot apply to commercial claimants, non-pecuniary purpose must be important, only nominal damages (£10,000 limit, with Ruxley) and only when no alternative measure
Malins v Freeman
D drunk; no SP
What case suggested Hoffman widened Hadley?
Supershield
Howe v Smith
No recovery of deposit
Stansbie v Troman
Builders; front door
What do both Wrotham Park and A-G v Blake use in account of profits?
Hypothetical bargain for sale of right, but fallacy because C may not have contracted at any price.
Alder v Moore
Insurance, £500, no BoC
What case shows the use of s.1(1) and 4 of the LR(CN)A 1945?
Barclays v Fairclough
Golden Strait v Nippon Yusen
Gulf war
S.236 Trade Union and Labour Relations (Consolidation) Act 1992
No compulsion to work
Robinson v Harman
‘To be placed in the same situation, with respect to damages, as if the contract had been performed’
Lamm v Shingleton
Improperly interred corpses
Johnson v Johnson
Shares; £40,000, £140,000
Hadley v Baxendale
Crank shaft mill
Hyundai Shipbuilding v Papadopoulos
No recovery of part-payment if C has incurred reliance expenditure without express contractual stipulation
Monarch Steamship v A/B Karishamns
Act of god breaks chain of causation
What case shows an award of non-pecuniary loss higher than that suggests in Farley and Ruxley?
Hamilton Jones
Johnson v Agnew
Assessment as date of BoC unless injustice
Beswick v Beswick
No other remedy but SP; uncle’s wife
De Francesco v Barnum (No.1)
No SP of personal service because of enslavement
Negative duty to avoid worsening losses by spending on advertising (reasonable)
Holden Ltd v Bostock
Lordsvale Finance v Bank of Zambia
Commercial justification for agreed damages
The Soholt
Renegotiate, positive duty
What Lord and in what case argued that reasonableness for mitigation is part of a broader principle?
Lord Lloyd in Ruxley v Forsyth –> Swimming pool
British Westinghouse v Underground Electric
‘Ordinarily take in the course of his business’ for mitigation
Who states reliance interest is not a contractual interest at all?
Friedmann
Mertens v Home Freeholds
Cost of cure for building contracts as may be aesthetic
Union Eagle v Golden Achievement
Deposit 10%, custom 10%, 10 minutes late; allowed to enforce
What case qualified the limbs in Hadley?
The Heron II
Yerton v Eastwoods Froy
Substitute performance, positive duty
The Heron II
Two qualifications on Hadley: type, not extent, and serious possibility of loss, not just slight
Why was it argued in Panatown that the promisee should be able to claim?
Legal black hole of terms not in deed which were in main contract
What is the two stage assessment to damages?
Prima facie measure then any limitations
Why was diminution given in Tito v Waddell?
Huge difference in price, and islanders had left
Giles & Co v Morris
‘significant reluctance’ for SP of personal service, but not absolute (Megarry J)
If there is loss of performance to a third party, in what case and how was it suggested the promisee could claim?
McAlpine v Panatown: duty of care, Millett and Goff on broad ground
When will C usually use reliance?
Can’t prove loss of profits, wants damages for pre-contractual expenditure and they have entered a losing bargain
What was the narrow approach of Lloyd in Forsyth?
Link with pleasurable amenity cases
Why was cost of cure not given in Forsyth?
Unreasonable as cost of repair was high and work not a benefit
Why did the court not allow the instalment to be forfeited in Johnson v Johnson?
Flavour of a penalty clause
What did they recover in Jarvis v Swans Tours?
Payment and compensation for distress
What case gives the basic rule for expectation damages?
Robinson v Harman
What interest did Fuller and Perdue champion?
Reliance interest
Lambert v Lewis
Coupled, knew lock mechanism was broken
Walters v Morgan
Rushed D because of ignorance; no SP
Loddar v Slowey
May be allowed in excess of contract price under restitution interest for goods/services supplied
Diesen v Samson
Photographer for wedding event
Farley on harm
Harm includes aircraft noise but not mere disappointment
Huenig v Isaacs
10% defects or less, allowed action for agreed sum
Jacobs & Youngs v Kent
Pipes
Dies v British International Mining
Recovery of part-payment
Anglia TV v Reed
Actor breach
James Finlay v Kwik Hoo Tung
Not risk reputation
CCC Films v Impact Quadrant
C can generally choose either expectation or reliance
McRae v Commonwealth
Oil tanker
Farley on Watts v Morrow
Qualified it with limitations
Makdessi v Cavendish Square on agreed damages
Genuine pre-estimate may be too rigid now
Clippens Oil v Edinburgh & District
No need to do anything unaffordable
What case shows courts are more likely to concur with agreed damages clause if the loss is uncertain?
Murray v Leisureplay
What type of remedy was given for consequential loss in Tito v Waddell?
Diminution of value
Wrotham Park v Pakside Homes
5% account of profits
Who said that in cases like Ruxley, English law has failed to recognise the value of right to performance itself, so not protecting EI at all?
B Coote
What could they not claim for in Victoria Laundry?
Lucrative contract
Araci v Fallon
Racehorse; rider retainer
Tito v Waddell (No.2)
Islanders and trees
Patel v Ali
Delay (4) + hardship = no SP, but unlikely hardship on its own
Who argued restitution is the most important damage?
Fuller and Perdue
When are two exceptions to CCC Films v Impact Quadrant?
Bad bargain as EI caps RI, respecting contractual allocation and if EI damages are speculative
Positive duty to act reasonably to avoid losses by substitute
Yerton v Eastwoods Froy
The Albacruz
Exception to usual rule of privity - A may recover substantial damages if privity of contract, but if no proprietary interest or risk then he is accountable to the true owner
Murray v Leisureplay
Unfair dismissal
Barclays Bank v Fairclough Building
Asbestos, hoses
What two cases show expectation damages speculative?
McRae v Commonwealth; Anglia TV v Reed
Sky Petroleum v VIP Petroleum
Shortage of petrol
S.53(3) SoGA
Expressly stipulated diminution
The Achilleas
Follow-on charter; assumption of responsibility
Addis v Gramophone
No punitive punishment of D for BoC
The Sylvia
Hoffman’s test is used when Hadley causes ‘unquantifiable, unpredictable, uncontrollable or disproportionate’ results
What did Steyn use to work out if there was non-pecuniary interest in Farley?
Law of nuisance, making use of existing authorities
What is noted about allowing damages in Panatown on the ground that damages are for substitute performance?
Damages were for delay, but delay was a historical fact that couldn’t be remedied by money.
Positive duty to act reasonably to avoid losses by renegotiating
The Soholt
What consequences are there from accepting damages are to give C substitute performance?
Wider availability of cost of cure to enable C to get performance and courts limiting cost of cure if work not to be carried out or unnecessary hardship to D (Ruxley and Panatown)
What is the basic rule for recovering D’s profits from breach?
You can’t except exceptionally (A-G v Blake)
Linden Gardens v Lenesta
Built on The Albacruz - can recover money to give B benefit of the bargain which C failed to deliver
Where does McKendrick suggest Achilleas fits under Hadley?
2nd limb
Astley v Austrust Limited
Should get rid of CN, says High Court of Australia
Why was there no loss of amenity in Jacobs & Youngs v Kent?
No non-pecuniary interest; just wanted damages
Stockloser v Johnson
Even if not ready and willing, he may not forfeit all
What are the three types of damages?
Reliance, expectation and restitution
What was the impact of Farley on non-pecuniary loss?
Removed need for object of contract to be pleasure/peace of mind (Watts v Morrow)
White & Carter v McGregor on action for agreed sum
Limitations on affirmation: legit interest and no cooperation needed.
Quinn v Burch Bros
CL position of contributory negligence
By including loss of opportunity in reliance interest, what did F & P do?
Bring it closer to EI
Watts v Morrow
Must be sole object to avoid distress (but see Farley now)
What was the broad approach of Mustily in Forsyth?
‘Consumer surplus’ so parties enter for reasons other than money
US v Bethlehem Steel
Guns; paid excess for AD but overcompensatory?
What case suggested Hoffman made no difference to Hadley?
MFM Restaurants v Fish & Co Restaurants
Why does Victoria Laundry clash with The Heron?
Said that although NI foresaw type of loss, didn’t foresee extent and thus not recoverable
What is a subdivision of non-pecuniary loss?
Loss of amenity
Bolton v Mahadeva
31% defects so no action for agreed sum
Wilson v Northampton and Bambury
Railway construction, difficult to know obligations so hard to give SP
What case shows an unreasonable act by C can break chain of causation for D?
Lambert v Lewis
If there is loss of performance to a third party, what two things protect the 3rd party’s loss?
C(RoTP)A and Albacruz v Albazro: Assumes loss belongs to 3rd
The Mamola Challenger
Rejected Friedman and Treitel that reliance is fundamentally different from EI, claiming instead that reliance is a species of EI
Hobbs v L & S Railways
Walking 4/5 miles (harm)
What are the three requirements for recovering profits of D from breach?
Only when contractual remedies are inadequate, C must have ‘legitimate interest’ and regard to ‘all the circumstances’
Cooperative Insurance v Argyll Stores
Anchor unit, 35, 16, oppressive
Pilkington v Woods
No significant financial risk
What did the court in Farley require for the case to fit under harm?
Physical emanation (sound waves: Clyde)
When did Forsyth say that loss of amenity is given?
When ‘value of the promise… exceeds the financial enhancement of his position which full performance will secure’
Who suggests F&P’s label of EI is misleading?
Friedmann
Re Dagenham
‘Ready and willing’, courts may give buyer time to pay
What are the two types of consequential loss?
Diminution of value and cost of cure
What was the primary reason for allowing seller to keep the deposit in Union Eagle?
Commercial certainty
When can C recover money under restitution interest?
Total failure of consideration (Giles v Edwards)
What statute supports the cases of Giles & Co v Morris; De Francesco v Barnum?
S.236 Trade Union and Labour Relations (Consolidation) Act 1992
Why is Forsyth not authority for damages payable in loss of amenity?
Damages were not in issue
What did Scott require for inconvenience in Farley?
‘Sensory’ impact
Giles v Edwards
Total failure of consideration needed for restitution recovering money
