Remedies Flashcards
What is the purpose of damages in contract?
To put the innovent party in the position in which they would have been if the contract had been performed
What are expectation damages (loss of bargain)
The starting point for damages - put the non breaching party in the position they would have been in if the contract were properly performed
What are reliance damages?
If expectation daages are too speculartive (difficult to quantify), reliance damages compensate the non breaching party for expenses incurred in reliance on the contract up to the time of breach, and put the parties back in the position they would have been **if they had they never entered the contract **
What are nominal damages?
Where breach is established but no loss - £1 damages
Can you receive non-monetary damages in contract claims
Yes. Damages for physical injury are recoverable, as long as the loss is not too remote.
Damages for injury to feelings (ie mental distress) is not normally awarded, except in consumer contracts in which the sole purpose of the contract was enjoyment (eg a holiday)
when are damages measured?
Measured as at the date of breach
How do you assess remoteness of damages?
Damages that are too remote are not recoverable. Damages must
- arise naturally from the breach
- Have been in reasonable contemplation of both parties to the contracrt as a result of the breach
- Remoteness is considered at the time the contract was made
Where there is a breach of contract for the sale of goods, and the goods aren’t delivered or the buyer rejects them -
Starting point is the difference between the contract price and the market price for the goods at the time of breach (what replacing what the dont have would cost)
Where the buyer wrongfully refuses to accept delivery
Starting point is the difference between the contract price and hte market price for the goods at the time of the breach
When are liquidated damages clauses allowed?
Only when it was based on a genuine estimate of the damages a breach might cause
Cannot be a penalty. Penalties are not enforceable.
Specific performance in contract
Equitabel remedy, granted only if money damages would be inadequate (ie unique goods or land)
Wont be granted if it would cause undue hardship, order someone to work for someoen else, or require too much supervision from the court to enforce
Must come to equity with clean hands, and not cause unreasonable delay (laches)
What are the Consumer Rights Act Remedies?
- Right to reject defective goods within 30 days for a full refund
- Right to require the trader to repair or replace goods at the trader’s expense; and
- If the repair or replacement is not successful, too expensive or cannot be carried out in a reasonable time with without causing inconvenience, the right to require the trader to reduce the price or to reject the goods in return for a refund
What is a restitution and when is it most appropriately sought?
If no contract remedy is available, but a person would be unjustly enriched because a contract failed - a restitution can be sought to prevent unjust enrichment.
- Innocent party needs to have a legitimate interest in preventing the unjust enrichment
Eg. benefit was provided but there was no contract, money was paid by mistake, contract has been rescinded, property has been transferred under threat or pressure as a result of undue influence
Restitution can require payment of money or the turnover of property
- quantum merit (payment for services)
- quantum valebat (payment for goods)
