lesson 15 Flashcards
What are the primary types of judicial remedies for breach of contract in Scots law?
The primary remedies are:
- Declarator
- Interdict
- Specific Implement
- Decree for Payment
- Damages
What is a declarator?
A declarator is a court order that declares what the law is regarding a particular legal issue. For example, it may clarify the proper interpretation of a contract.
What is an interdict?
An interdict is a preventative remedy that prohibits a party from carrying out or continuing a wrongful action.
Types:
- Interim Interdict: Temporary protection granted quickly in urgent cases.
- Permanent Interdict: A final court order issued after full consideration.
What conditions must be met to obtain an interim interdict?
The court must be satisfied that:
- There is prima facie evidence of a legal wrong.
- The balance of convenience favors granting the remedy.
What is specific implement?
Specific implement is a court order compelling a party to fulfil their contractual obligations. This is also known as an order ad factum praestandum.
When will a court refuse specific implement?
A court may refuse specific implement if:
- Performance is impossible.
- Performance would cause excessive hardship.
- The obligation is related to personal relationships (e.g., employment contracts).
- The remedy is sought to enforce payment of money (instead, a decree for payment is appropriate).
What is a decree for payment?
A decree for payment is a court order requiring the contract-breaker to pay a specified sum of money owed under the contract. It is commonly used for enforcing debts.
What are damages, and when are they awarded?
Damages are monetary compensation awarded for loss resulting from a breach of contract. Damages are available if:
- The breach caused actual loss.
- The loss is not too remote from the breach.
- The aggrieved party has taken reasonable steps to mitigate their losses.
What are the key principles for calculating damages?
Damages are calculated based on:
- The performance interest (compensating for what the injured party expected to gain).
- The difference in value between what was promised and what was delivered.
- The cost of cure if repairs or corrections are necessary.
What is the role of interest in debt actions?
Interest may be claimed on unpaid debts as compensation for being deprived of the use of money. Courts may apply statutory or contractual rates.
What is the distinction between interdict and specific implement?
- Interdict stops a party from doing something (negative obligation).
- Specific Implement forces a party to do something (positive obligation).
What happens if an interdict or specific implement order is ignored?
Failure to comply may result in contempt of court, which can lead to fines or imprisonment.
