Remedies Flashcards
1
Q
What are the three types of remedies?
A
- Legal Remedies (Damages)
- Equitable Remedies
- Remedies under a specific statute
2
Q
What are damages?
A
- The concept of damages is to put the claimant into the position they would have been in if the contract had not been breached
- They are a legal remedy as they are entitled to it due to the breach of contract
3
Q
What are the two types of damages awarded?
A
- Pecuniary Losses = Financial
- Non-Pecuniary Losses = Mental Stress
4
Q
How are damages awarded? Objective or Subjective?
A
- Damages are subjective
- They will award damages based on case facts to place the victim if the contract had been correctly performed
5
Q
What are nominal damages?
A
- If nothing has been lost so nothing to compensate but as of right should be allowed to claim for damages
- Staniforth v Lyall
6
Q
What substantial/compensatory damages?
A
- These damages are awarded when there has been an actual loss
- It may have been more appropriate to award nominal damages
- Seen in Hendrix LLC v PPX Enterprises
7
Q
What are Wrotham Park damages?
A
- This is rather than compensatory damages
- They try to decide how much might have been reasonable to negotiate between parties
- It can be used for land, non competition clauses, intellectual property and when it is difficult to compensate loss
8
Q
What are non-pecuniary losses/speculative damages?
A
- The general rule is that damages wont be awarded for non-pecuniary matters which is mental distress however this can be an exception if the whole purpose of the contract was non-pecuniary
- Damages would be awarded for disappointment as it was the main purpose
- Shown in Javis v Swan Tours
9
Q
What are the three limitations on awarding damages?
A
- Causation
- Remoteness
- Mitigation of losses
10
Q
What is causation?
A
- The losses must have been caused by the breach of contract
- Using the But For Test shown in Quinn v Burch Brothers
11
Q
What is remoteness?
A
- Was the loss reasonably foreseeable from the breach (Hadley v Baxendale)
- The first part is objective if the loss was a natural consequence of the breach
- The second part is subjective and based on the specific knowledge of both parties if they held knowledge of potential losses
- The test was then developed in Victoria Laundry v Newman
- Recoverable should be measured against a test of reasonable foreseeability
- Foreseeability of loss is dependent on the knowledge at the time the contract was made
- Was it common knowledge or actual knowledge
- Case showing it was not too remote H Parsons v Uttley Ingham
- Remoteness must determine what was in the contemplation of the parties at the time of the contract
11
Q
What is mitigation of loss?
A
- Claimants cannot watch their losses grow
- They have to try mitigate their loss meaning minimize
- Shown in Pilkington v Wood
- It only needs to be reasonable in the circumstances
- Shown in British Westinghouse Electric v Underground Electric Railways
12
Q
What are the four categories of recoverable loss?
A
- Loss of a Bargain
- Reliance Loss
- Expectation Loss
- Restitution
13
Q
What is a loss of bargain?
A
- This places the claimant in the same financial position as if the contract had been properly performed
- This can be the difference in value of goods/services compared to what they actually received
- Damages will be the difference between the market value and the contract price
- Loss of profit they could have made
- Loss of chance
14
Q
What is reliance loss?
A
- The expense incurred by a claimant who relied on the contract being performed
- Can claim for loss of an amenity
- Anglia Television v Reed shows you can claim if you relied on it
14
Q
What is expectation loss?
A
- This is the usual measure of damages for a breach of contract
- It includes profit it would expect to receive
- Put them innocent party in the same position if the contract had been performed
15
Q
What is restitution?
A
- This is a repayment of any money that was given to the defendant in advance of the contract breached
- It restores any money back to them
16
Q
What is liquidated damages?
A
- The amount of damages are fixed by a term in the contract
- Courts will only accept this if it is an accurate representation of loss, however if not it is a penalty and enforceable
- Extravagant sum will always be a penalty
- Large sums for failure to pay a small debt is likely a penalty
- Single sum for operating many different breaches is a penalty
- New rule is established in Supreme Court in Cavendish Square Holding BV v Talal El Makdessi
- The party seeking to rely on the term must be able to show that the clause is to protect a legitimate interest and the amount is not unconscionable
17
Q
What type of remedy is Quantum Merit and when will it be rewarded?
A
- Equitable remedy
1. Contract for services where no price is stated
2. A fresh agreement can be implied in place of the original one
3. In a discharge case, via breach of prevented from full performance
18
Q
What are equitable remedies?
A
- They are not legal remedies or as of right
- They are used when damages are inadequate
- They do not use remoteness or causation
- One equitable remedy is an injunction to prevent people from doing something
- Another equitable remedy is specific performance
18
Q
What is specific performance?
A
- This is a type of equitable remedy
- It orders one party to perform their contractual obligation
- It is hard to grant and rarely used
- It will not be granted in personal cases, employment, impossibility and lack of supervision
19
Q
What are the scenarios where specific performance cannot be granted?
A
- An individual is no longer available
- Contract was not agreed with enough certainty
- Requires ongoing supervision
- Employment contract
- Goods specified are no longer available
- If claimant does not want the contract to be complete
- Court cannot monitor contractual performance adequately
20
Q
What is the essay plan for whether someone is entitled damages?
A
- Has the claimant suffered loss
- Is the loss suffered actionable
- Did the breach cause the loss
- Was the loss reasonable foreseeable
- Did the claimant mitigate the loss
- Did the claimant contribute to the loss
- Is it impossible to perform the obligation
- Has the claimant previously terminated the contract
