Remedies Flashcards

1
Q

What is the principal remedy for breach?

A

Damages

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2
Q

Purpose and ways of calculating damages?

A

EXPECTATION INTEREST

Compensating – to put in position should HAVE BEEN if contract was performed.
Methods of calculating expectation interest.
- Cost of cure - standard mechanism. Unless unreasonable.
- Diminution in value
- Loss of amenity NOT AVAILABLE IN COMMERCIAL COTEXT.

RELIANCE INTEREST
- Backwards looking - recover expense that have been incurred in preparing for in part of performance of the contract.
- Haven’t got any gains they would have got
- Gets you back expenses
- Become important if expectation cost is highly speculative
-

Restitution interest
interest a claimant has in the restoration to them of benefits which the defaulting party has acquired at their expense.
- This is in exceptional cases.
- Where breach was cynical and deliberate
- Enables defendant to enter into a more profitable contract elsewhere
- By entering into a new more profitable contract, defendant put it to of his power to perform the contract with the claimant.

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3
Q

Types of loss?

A

Damages for metal distress
- General rule is that it will not be awarded in relation to mental distress or anguish.
- Exception – where major object of contract was to provide pleasure,

Damages for loss of reputation
- General rule is not awarded.
Dmaages for loss of chance
- Loss of an opportunity is recoverable in damages if the lost chance is quantifiable in monetary terms.
Damages on behalf of another
- General rule – cannot be recovered on behalf. Exception is those of privity to contract.

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4
Q

Limitation factors to damages?

A

Causation
- Must establish a casual link
- Whether breach by defendant has caused the loss suffered by the claimant. (factual causation) – common sense approach
- Whether as a matter of law they should be responsible (legal causation) – if there is a novus actus intervenient

Remoteness
- Not all losses flowing are recoverable
- Foreseeable
- Losses that are likely to flow from breach of the type of contract or that specific contract itself.

Mitigation
- Injured party should take reasonable steps to minimise effect of breach – technically no obligation to mitigate

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5
Q

Remedies under CRA 2015 for goods?

A

Contracts for goods
- For goods that are non-nonconforming CRA s9,10,11, there are 3 remedial options.
- Short term right to reject – usually in 30 days
- Right to repair or replacement – available unless impossible or disproportionate
- Right to a price reduction – only exercises after the repair or one replacement the goods do not conform to the contract

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6
Q

Remedies under CRA 2015 for digital media?

A
  • S42 digital media where non-conforming
  • Right to repair or replacement – do either within a reasonable time and without significant inconvenience to the consumer.
  • Right to price reduction – exercisable only when consumer either cannot require repair or replacement
  • Right to refund – where trader has no right to supply the digital content – refund must be given within 14 days
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7
Q

Remedies under CRA 2015 for contracts for service?

A
  • Right to require repeat performance – within a reasonable time and without significant inconvenience to consumer.
  • Right to price reduction – where repeat performance is impossible or not in time.
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8
Q

What is a liquidated damages clause?

A

Liquidated damages clause – stipulates a certain sum which is to be payable on particular breach of contract.

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9
Q

Court intervention in liquidated damages clause?

A
  • Many instances where courts can strike down liquidated damages clauses which requires a party to pay an excessive sum such that it becomes a penalty.
  • Penalty clause – an excessive sum – clause will be struck out and NOT UPHELD.
  • Clause will be secondary if obligation is trigger by breach of party.
  • If secondary clause will be a penalty if it imposes a detriment out of all proportionate to any legitimate interest of innocence party in performance of primary obligation. BURDEN OF PROOF ON PERSON ALLEGING THAT THE CLAUSE IS A PENALTY
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10
Q

Specific performance and prohibitory injunctions?

A

NEITHER WILL BE GRANTED IF DAMAGES IS ADEQUATE.
To show its inadequate need to show that subject matter is unique or

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11
Q

Guarantees and indemnities?

A

Guarantee – a promise by a party to ensure that another party carries out its obligations, or a promise to fulfil those obligations itself if other party does not do so.

It creates a secondary obligation which only arises once the person has first or used a claim against the original party

  • If there is a change to contract – a guarantee will be discharged whilst an indemnity will stay
    If the terms of original agreement are unenforceable then the gurantee is also unenforceable.

Indemnity – a promise to reimburse someone in the event that they suffer a stated loss.
This is a primary obligation.

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