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Contract > Remedies > Flashcards

Remedies Flashcards

1
Q

What are nominal damages?

A

token amount to acknowledge breach of contract but no other remedy available

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2
Q

What are the ways of assessing damages?

A

Expectation interest
Relience interest
Restitution interest

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3
Q

What is expectation interest?

A

putting innocent party in same position post-breach that should have been in had contract been performed

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4
Q

What are the three mechanisms for calculating expectation interest?

A

Cost of cure
Diminution in value
Loss of amenity

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5
Q

When calculating cost of cure, the claimant must act what?

A

Reasonably

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6
Q

What is diminution in value?

A

Difference in value between performance received and promised in contract

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7
Q

What is loss of amenity?

A

Non economic loss of pleasure

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8
Q

What is reliance interest?

A

expenses incurred in preparing for, or part performance of, the contract

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9
Q

When will the court not award expectation interest?

A

Where it is highly speculative

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10
Q

What can reliance interest only be awarded for?

A
  • wasted expenditure
  • that occurred prior to breach
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11
Q

What are the areas where there are damages for particular types of loss?

A
  • mental distress
  • loss of chance
  • loss of reputation
  • on behalf of another
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12
Q

What is the general rule for damages for mental distress?

A

Not awarded

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13
Q

When will compensation be awarded for mental distress?

A
  • 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
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14
Q

What is the general rule for damages for loss of reputation?

A

Not awarded

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15
Q

Why were damages awarded for loss of reputation in Malik?

A

contract of employment contained implied term of trust and confidence

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16
Q

What are the requirements for loss of chance?

A
  • Lost chance is quantifiable in monetary terms and
  • Real and substantial chance that the opportunity might have come to fruition.
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17
Q

What is the general rule for damages on behalf of another?

A

Not awarded

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18
Q

What are the limiting factors for recovering damages?

A
  • caused by breach
  • not too remote
  • can be reduced where failure to mitigate
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19
Q

What is required to show that loss is caused by the breach?

A

factual causation
legal causation

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20
Q

How may an intervening event break the chain of causation?

A

Not likely to happen

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21
Q

What are the requirements for loss not being too remote?

A

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

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22
Q

When are losses not recoverable with regards to mitigation?

A

Losses attributable to a failure to mitigate after breach

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23
Q

What was the point made about reliance interest in Middleton?

A

Defendant accounting for profits made at claimant’s expense

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24
Q

What is restitution interest?

A

Interest C has in restoration of benefit which D acquired at their expense

25
Q

What are the requirements for an award of account of profits?

A
  • No other remedy available
  • Claimant has legitimate interest in depriving D of profits
26
Q

What are the remedies for non conforming goods under CRA?

A
  • Short term right to reject
  • Right to repair or replacement
  • Right to a price reduction or final right to reject
27
Q

When is the short term right to reject available?

A

available for 30 days from
o Time ownership has passed
o Goods delivered and
o Trader notified required steps taken

28
Q

When is the right to repair or replacement available?

A

Any time unless impossible/disproportionate

29
Q

When is the right to price reduction or final right to reject available?

A

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

30
Q

What is the time period for non-conforming digital media?

A

where doesn’t conform at any time within 6 months of beginning of day supplied, taken to not conform when supplied

31
Q

What are the remedies for non conforming digital media under the CRA?

A
  • Right to repair or replacement
  • Right to price reduction
  • Right to refund
32
Q

When will a refund be awardedd for digital media?

A

Where trader had no right to supply

33
Q

How long does a trader have to refund digital media that it had no right to supply?

A

14 days

34
Q

When will remedies be awarded for digital media that has caused damage to a device or other digital content?

A

damage of the kind that would not have occurred if trader exercised reasonable care and skill

35
Q

What is the remedy for damage to a device or other digital content?

A

Repair or compensation

36
Q

What are the remedies available for non conforming services under the CRA?

A
  • Right to require repeat performance
  • Right to price reduction
37
Q

When is the right to price reduction available for services?

A

o Repeat performance is impossible
o Failed to provide repeat performance within reasonable time/without significant incovenience

38
Q

What is a liquidated damages clause?

A

stipulates a certain sum which is to be payable on
a particular breach of contract

39
Q

When will a liquidated damages clause not be upheld?

A

If considered a penalty clause

40
Q

When will the penalty rule not apply to a liquidated damages clause?

A

Primary clause (furthers commercial objective)

41
Q

What is a secondary clause?

A

Obligation triggered by breach to compensate innocent party

41
Q

What questions are asked to decide if a secondary clause is a penalty clause?

A

a) What legitimate interest is served and protected by the clause?
b) Is the detriment imposed extravagant, exorbitant or unconscionable?

42
Q

Who holds the burden of proof for penalty clauses?

A

Person alleging there is a penalty clause

43
Q

What are the remedies other than damages?

A

Specific performance
Prohibitory injunction

44
Q

What is a positive term?

A

A term which requires a party to do something

45
Q

What is a negatvie term?

A

A term which requires a party not to do something

46
Q

What is an order of specific performance?

A

Requires a party to carry out its obligations under a positive term

47
Q

What is a prohibitory injunction order?

A

Restrains a party from breaching a negative term

48
Q

When will a specific performance/prohibitory injunction order not be made?

A

if damages are an appropriate/adequate remedy

49
Q

What considerations are made when deciding to award specific performance/prohibitory injunction?

A
  • Subject matter of the contract is unique or irreplaceable
  • Damages would be ineffective to compensate
50
Q

What are the equitable principles considered when deciding to award specific performance/prohibitory injunction?

A
  • claimant must come with clean hands
  • delay defeats equity
51
Q

What are the principles where specific performance will not be awarded?

A
  • 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
52
Q

Prohibitory injunctions are only granted where….

A

It is just and convenient

53
Q

What is a guarantee? (remedies)

A

Promise by a party to ensure another party carries out its obligations or to fulfil itself if other party does not

54
Q

What is an indemnity?

A

Promise to reimburse in the event that they suffer a stated loss

55
Q

Will a guarantee or indemnity remain where A’s obligation ceases?

A

Guarantee ceases
Indemnity remains

56
Q

Will a guarantee or indemnity remain where the contract changes?

A

Guarantee discharged
Indemnity remains

57
Q

What are the formalities for a guarantee?

A

In writing
signed by guarantor

Contract (12 decks)

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