PowerPoint 8

Question 1

Forward Looking Damages

Answer 1

Plaintiff monetarily placed as if contract performed.

Question 2

Calculation of Expectation Damages

Answer 2

Expected benefits minus expected costs. You were going to sell for 20, you sold for 15 to mitigate damages, you sue to get 5 back.

Question 3

Difficulty of Calculation

Answer 3

Awarded even if calculation is imprecise. Not awarded if calculation is totally speculative. Highly speculative to say that I would’ve won race had the mechanics shown up.

Question 4

When the cost of cure to reclaim after an oil and gas project is worth more than the value of the land itself (even after reclaimed), what is the remedy?

Answer 4

If the landowner has a reason to want to keep using the land (wants to keep farming), the oil and gas company has to pay to reclaim. If the landowner has no reason, then only the value of the land has to be paid out.

Question 5

Intangible Loss

Answer 5

No apparent economic value. Disappointment, anger, sadness, distress.

Question 6

Why were damages for intangible losses traditionally denied?

Answer 6

Difficulty assessing value of loss. Loss falls outside commercial paradigm.

Question 7

Can you ask for intangible losses in tort law?

Answer 7

Yes.

Question 8

Can you ask for intangible losses in contract law?

Answer 8

No.

Question 9

In what cases are damages allowed for intangible losses?

Answer 9

• If peace of mind was expected benefit.

- If reasonably foreseeable.

Question 10

Notice Period

Answer 10

Employer has to give advance notice of termination. Usually get severance instead, give payment in lieu of severance.

Question 11

Wallace case allowed for…

Answer 11

Extended notice period because of dismissal that was humiliating.

Question 12

Remoteness

Answer 12

• Loss mut in fact be caused by breach.

- Loss must not be legally remote from breach.

Question 13

When is loss not remote?

Answer 13

• When the defendant should have known of risk of loss.

- Defendant actually knew of risk of loss.

Question 14

Hadley vs Backsindale

Answer 14

Hadley runs a mill. Shaft breaks. Hires Backsindale. Has 2 days. Backsindale does not deliver in time. Hadley was able to prove that Backsindale cost him lots of money. Backsindale did not know this. You can sue for consequential damages, but need to make sure O/P is aware of them.

Question 15

Liquidation Damage Cost

Answer 15

If you breach, this is what it will cost you. This cost needs to reflect what you would actually lose.

Question 16

Mitigation

Answer 16

Minimization of losses.

Question 17

Duty to Mitigate

Answer 17

Plaintiff encouraged to minimize losses. For example, arranging alternate supply of materials after breach. Plaintiff merely needs to take reasonable steps. Plaintiff entitled to expenses incurred in mitigation.

Question 18

What is the effect of failure to mitigate?

Answer 18

Damages reduced to extent losses not avoided.

Question 19

Reliance Damages

Answer 19

Value of resources wasted under contract. What money did you put on the table relying on the fact that the contract would be created.

Question 20

Backward-Looking Damages

Answer 20

Plaintiff placed as if contract never created.

Question 21

Availability of Reliance Damages

Answer 21

Plaintiff usually has option: expectation or reliance.

Question 22

Account of Profits

Answer 22

Damages traditionally limited to losses. However, relief now available for wrongful gains, even without the presence of a loss. Only available in exceptional circumstances.

Question 23

Nominal Damages

Answer 23

Symbolize wrongdoing without loss. Symbolic gesture saying they did commit a tort.

Question 24

Liquidated Damages

Answer 24

Parties’ genuine pre-estimate of possible losses. Avoid complication of litigation, provide incentive to perform.

Question 25

Effect of liquidated damages:

Answer 25

Recovery of agreed amount if breach. Actual size of loss (larger or smaller) irrelevant.

Question 26

Do liquidated damages need to be reasonable?

Answer 26

Yes. If they are not, they are unenforceable. Cannot be used as a penalty.

Question 27

Penalty Clause

Answer 27

No genuine attempt to estimate possible losses. Unenforceable: damages limited to actual loss.

Question 28

Punitive Damages

Answer 28

Intended to punish outrageous conduct. Awarded in addition to compensatory damages.

Question 29

General requirements for punitive damages:

Answer 29

• Harsh, vindictive, or reprehensible breach.

- Commission of independently actionable wrong.

Question 30

2 forms of equitable relief:

Answer 30

• Specific performance.

- Injunction.

Question 31

Specific Performance

Answer 31

Court order to perform contractual action.

Question 32

Discretionary nature of equitable remedies:

Answer 32

• Awarded only if appropriate in circumstances.

- Denied if plaintiff does not have “clean hands.”

Question 33

Requirements for Specific Performance:

Answer 33

• Damages inadequate.
• Judicial supervision.
• Personal services.

Question 34

Injunction

Answer 34

Court order to obey contractual prohibition.

Question 35

Injunction generally has a ___ scope of availability.

Answer 35

Wider.

Question 36

Specific performance has a ___ limit on freedom, as you cannot do anything other than the required act.

Answer 36

Large.

Question 37

Injunction has a ___ limit on freedom, as you can do anything other than prohibited act.

Answer 37

Small.

Question 38

Exclusion Clause

Answer 38

Contractual term limiting liability.

Question 39

Enforcement of exclusion clause:

Answer 39

• Allowed by freedom of contract.
• Court protects consumer through narrow reading against drafter, must be drawn to consumer’s attention, and clause inapplicable if unfair.

Question 40

Unjust Enrichment

Answer 40

Independent cause of action. Unavailable if enforceable contract on point.

Question 41

Requirements for unjust enrichment:

Answer 41

• Enrichment to defendant.
• Corresponding deprivation to plaintiff.
• Absence of juristic reason for enrichment.