Remedies Flashcards
What are nominal damages?
token amount to acknowledge breach of contract but no other remedy available
What are the ways of assessing damages?
Expectation interest
Relience interest
Restitution interest
What is expectation interest?
putting innocent party in same position post-breach that should have been in had contract been performed
What are the three mechanisms for calculating expectation interest?
Cost of cure
Diminution in value
Loss of amenity
When calculating cost of cure, the claimant must act what?
Reasonably
What is diminution in value?
Difference in value between performance received and promised in contract
What is loss of amenity?
Non economic loss of pleasure
What is reliance interest?
expenses incurred in preparing for, or part performance of, the contract
When will the court not award expectation interest?
Where it is highly speculative
What can reliance interest only be awarded for?
- wasted expenditure
- that occurred prior to breach
What are the areas where there are damages for particular types of loss?
- mental distress
- loss of chance
- loss of reputation
- on behalf of another
What is the general rule for damages for mental distress?
Not awarded
When will compensation be awarded for mental distress?
- Contracts where whole purpose are provision of please, relaxation and peace of mind
- Contracts where major object was to provide pleasure, relaxation and peace of mind
What is the general rule for damages for loss of reputation?
Not awarded
Why were damages awarded for loss of reputation in Malik?
contract of employment contained implied term of trust and confidence
What are the requirements for loss of chance?
- Lost chance is quantifiable in monetary terms and
- Real and substantial chance that the opportunity might have come to fruition.
What is the general rule for damages on behalf of another?
Not awarded
What are the limiting factors for recovering damages?
- caused by breach
- not too remote
- can be reduced where failure to mitigate
What is required to show that loss is caused by the breach?
factual causation
legal causation
How may an intervening event break the chain of causation?
Not likely to happen
What are the requirements for loss not being too remote?
1) usual course of things or
2) Reasonably be supposed to have been in contemplation of both parties at time of contracting as probably result of breach
When are losses not recoverable with regards to mitigation?
Losses attributable to a failure to mitigate after breach
What was the point made about reliance interest in Middleton?
Defendant accounting for profits made at claimant’s expense
What is restitution interest?
Interest C has in restoration of benefit which D acquired at their expense
What are the requirements for an award of account of profits?
- No other remedy available
- Claimant has legitimate interest in depriving D of profits
What are the remedies for non conforming goods under CRA?
- Short term right to reject
- Right to repair or replacement
- Right to a price reduction or final right to reject
When is the short term right to reject available?
available for 30 days from
o Time ownership has passed
o Goods delivered and
o Trader notified required steps taken
When is the right to repair or replacement available?
Any time unless impossible/disproportionate
When is the right to price reduction or final right to reject available?
o After one repair/replacement, goods don’t conform
o Cant require repair/replacement due to impossibility/difficulty
o Required repair/replacement but trader in breach of requirement to do so within reasonable time/without significant inconvenience
What is the time period for non-conforming digital media?
where doesn’t conform at any time within 6 months of beginning of day supplied, taken to not conform when supplied
What are the remedies for non conforming digital media under the CRA?
- Right to repair or replacement
- Right to price reduction
- Right to refund
When will a refund be awardedd for digital media?
Where trader had no right to supply
How long does a trader have to refund digital media that it had no right to supply?
14 days
When will remedies be awarded for digital media that has caused damage to a device or other digital content?
damage of the kind that would not have occurred if trader exercised reasonable care and skill
What is the remedy for damage to a device or other digital content?
Repair or compensation
What are the remedies available for non conforming services under the CRA?
- Right to require repeat performance
- Right to price reduction
When is the right to price reduction available for services?
o Repeat performance is impossible
o Failed to provide repeat performance within reasonable time/without significant incovenience
What is a liquidated damages clause?
stipulates a certain sum which is to be payable on
a particular breach of contract
When will a liquidated damages clause not be upheld?
If considered a penalty clause
When will the penalty rule not apply to a liquidated damages clause?
Primary clause (furthers commercial objective)
What is a secondary clause?
Obligation triggered by breach to compensate innocent party
What questions are asked to decide if a secondary clause is a penalty clause?
a) What legitimate interest is served and protected by the clause?
b) Is the detriment imposed extravagant, exorbitant or unconscionable?
Who holds the burden of proof for penalty clauses?
Person alleging there is a penalty clause
What are the remedies other than damages?
Specific performance
Prohibitory injunction
What is a positive term?
A term which requires a party to do something
What is a negatvie term?
A term which requires a party not to do something
What is an order of specific performance?
Requires a party to carry out its obligations under a positive term
What is a prohibitory injunction order?
Restrains a party from breaching a negative term
When will a specific performance/prohibitory injunction order not be made?
if damages are an appropriate/adequate remedy
What considerations are made when deciding to award specific performance/prohibitory injunction?
- Subject matter of the contract is unique or irreplaceable
- Damages would be ineffective to compensate
What are the equitable principles considered when deciding to award specific performance/prohibitory injunction?
- claimant must come with clean hands
- delay defeats equity
What are the principles where specific performance will not be awarded?
- causes undue hardship
- promise given for no consideration
- employment contracts
- services where breakdown of trust/involves subjective opinion
- obligation to perform series of acts requiring constant supervision
- contracts not binding on both parties
Prohibitory injunctions are only granted where….
It is just and convenient
What is a guarantee? (remedies)
Promise by a party to ensure another party carries out its obligations or to fulfil itself if other party does not
What is an indemnity?
Promise to reimburse in the event that they suffer a stated loss
Will a guarantee or indemnity remain where A’s obligation ceases?
Guarantee ceases
Indemnity remains
Will a guarantee or indemnity remain where the contract changes?
Guarantee discharged
Indemnity remains
What are the formalities for a guarantee?
In writing
signed by guarantor
