Remedies Flashcards
what is the default approach in compensating the innocent party?
putting the innocent party in the same position that they should have been in had the contract been performed.
what are the three mechanisms for calculating expectation interest?
cost of cure, diminution in value, loss of amenity.
what are cost of cure damages?
represents the cost of substitute or remedial work required to put the claimant in the position they would have been in had the contract been properly performed.
claimant must act reasonably in relation to the defective works.
what is the reliance interest?
aims to put the claimant in a position as if they had never contracted. More likeky to be used when the expectation measure is hard to calculate.
how are damages for mental distress awarded?
THEY ARENT. exceptions:
1. compensation was limited to cases involving contracts whose whole purpose was the provision of pleasure, relaxation and peace of mind.
2. more recently, HOL allowed damages where a major object of the contract was to provide pleasure, relaxation and peace of mind.
can you receive damages for loss of reputation>
NO.
can you receive damages for loss of chance?
if the lost chance is quantifiable in monetary terms and there was a real and substantial chance that the opportunity might come to fruition.
- loss of chance falls below 50% and
- loss is real and substantial.
causation and damages?
court must establish a causal link between the D’s breach of contract and its loss in order to recover damages.
1. factual causation- D’s actions were a dominant or effective cause of the loss.
2. legal causation- whether D should be held responsible.
remoteness of damage in contract?
- fairly and reasonably be considered either arising naturally from such a breach of contract.
- such as may be reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.
mitigation of loss and damages?
injured party should take reasonable steps to minimise the effect of the breach.
‘reasonable’= one of fact.
claimant will not be able to recover losses which are due, not to the breach itself, but their own failure to behave reasonably after the breach.
what is the restitution interest>
there are some circumstances in which a claimant can recover the profit which the D has made form his breach of contract.
Must show a legitimate interest in depriving the D of his profit.
- breach was cynical and deliberate.
2, breach enabled the D to enter into a more profitable contract elsewhere. - by entering into a new and more profitable contract, the D put it out of his power to perform the contract with the claimant.
what are the remedies for contract for goods under CRA 2015?
- right to reject- usually 30 days from ownership passing or the goods being delivered.
- right to repair or replace- unless impossible.
- right to a price reduction or the final right to reject.
when does the right to a price reduction or final right to reject occur?
only occurs when
1. after one repair or one replacement the goods do not conform to the contract.
b. can neither repair or replace the goods
c- consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement to do so within a reasonable time and without significant inconvenience to the consumer.
remedies under CRA 2015 for contract for digital media?
- right to repair or replacement.
- right to price reduction.
Right to refund- where the trader had no right to supply the digital content that it supplied, s45 gives the consumer the right to recieve a refund for all money pay for the digital content. refund must be given within 14 days.
remedies under CRA 2015 for breaches of contracts for services?
- right to require repeat performance- within reasonable time and without significant inconvenience to the consumer.
- right to a price reduction- only where repeat performance is impossible or where the trader has failed to repeat performance eithin a reasoanble time and without inconvience.
what is a liquidated damages clause?
stipulates a certain sum which is to be payable on a particular breach of contract.
however if there is an excessive sum, the cluase may become a penalty and can be struck out by the court so the claimant will only be entitled to normal damages.
test for penalties vs liquidated damages clause?
- is the clause a primary or secondary obligation?
- primary if part of the primary obligations in the commercial context of the contract.
- secondary if it is an obligation triggered by breach of contract to compensate the innocent party.
(if primary it is not a penalty) - if secondary, the clause will be a penalty if it imposes a detriment out of all proportion to any legitimate interest of the innocent party in the performance of the primary obligation
a- what legitimate business interest is served and protected by the clause?
b- is the detriment imposed to protect that interest extravagant, exorbitant or unconscionable?
what is specific performance?
requiring to carry out its obligations under a positive term of the contract.
1. will not be awarded where it would cause undue hardship on the D.
2. a promise given for no consideration is not specifically enforcable even if made as a deed.
3. not given for breach of contract of employment.
4. not awarded for breach of an obligation to perform a series of acts which would need constant superivision of the court.
5. not be awarded for a breach of contract which is not binding on both parties.
what is a prohibitory injunction>
court order retraining a party from breaching a negative term.
ONLY WHEN JUST AND CONVENIENT.
when will specific performance/injunction be awarded?
if damages ARE NOT an appropriate and adequate remedy.
Both discretionary and equitable remedies.
WHAT IS A GUARANTEE?
promise by a party to ensure that another party carries out its obligations, or a promise to fulfil those obligations itself if that other party does not do so.
what is an indemnity?
promise to reimburse someone in the event they suffer a stated loss.
