Remedies Flashcards
What is the purpose of awarding damages?
compensate claimant for the damage, loss or injury they have suffered as a result of defendant’s breach, not to punish defendant.
3 mechanisms for calculating the expectation interest
- cost of cure
- diminution in value
- loss of amenity
Cost of cure
represents the costs of substitute or remedial work required to put the claimant in the position if contract was property performed
Diminution in value
reference to the difference in value between the performance received and that promised in the contract
Loss of amenity
form of compensation that reflects how your injuries have affected your way of life - non economic loss
What is ‘reliance interest’ when calculating damages?
refers to the expenses incurred by the claimant in reliance of the contract being performed.
- The aim of damages for reliance loss is to put the claimant in the position they would have been in had the contract never been made.
What are the different types of loss that may be awarded damages?
- mental distress
- loss of reputation
- loss of chance
General rule in relation to damages for mental distress
damages will not be awarded
BUT compensation is limited to cases involving contracts whose whole purpose pleasure relaxation and peace of mind
General rule in relation to damages for loss of reputation
damage will not be awarded
General rule in relation to damages of chance
Where claimant has real and substantial chance of gaining a particular benefit, which they lose as a result of D’s breach, they can recover their loss of chance.
- Damages will also be awarded for loss of chance if the lost chance is quantifiable in monetary terms
Which 3 elements must Claimant show to recover damages?
1- causation
2- remoteness
3- mitigation
Difference between factual and legal causation
FACTUAL - whether the breach by the defendant has cause the loss suffered by the claimant
LEGAL - whether the defendant should be held responsible for loss which has been caused by its breach
if factual causation is established, will the claim succeed if legal causation is not established?
no/ novus actus interveniens: breaks the chain of causation
What is meant by causation to recover damages?
claimant must establish a causal link between the defendant’s breach of contract and its loss in order to recover damages.
What is meant by ‘remoteness’ to recover damages?
Not all losses flowing from a breach of contract are recoverable.
- A line must be drawn somewhere dictating which loss is recoverable and which is not.
What is meant by ‘mitigation’ to recover damages?
Where one party has suffered loss resulting from other party’s breach of contract, the injured party should take ‘reasonable steps’ to minimise the effect of the breach - so damages will be reduced
What are the damages available under CRA 2015?
If goods don’t comply with the statutory implied terms, consumers have:
- short term right to reject
- right to repair or replacement
- right to a price reduction or final right to reject.
What are the rules regarding CRA short term right to reject?
short term right to reject is available to consumer for 30 days running from the time
(i) that ownership/ possession has passed
(ii) the goods have been delivered and
(iii) where the trader is required to install goods or to take other action to enable the consumer to use goods, the trader has notified the consumer that required steps have been taken.
What are the rules regarding CRA right to repair or replacement?
the right is available unless repairs or replacement is either impossible or disproportionate
What are the rules regarding CRA right to price reduction and final right to reject?
This remedy may only be exercised where:
(a) after one repair or one replacement, goods do not conform to contract; or
(b) consumer can require neither repair nor replacement of goods;
or
(c) consumer has required trader to repair or replace the goods,
** 6 month time limit from pass of ownership for final right to reject
What are the remedies for non-conforming digital content?
- right to repair or replace (within reasonable time)
- right to price reduction (where right to repair / replace isn’t available)
- right to refund
What are the remedies available for contracts of service?
- right to require repeat of performance (within reasonable time)
- right to price reduction (where 1 isn’t available)
