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CONTRACT > Remedies > Flashcards

Remedies Flashcards

1
Q

What is the most common remedy?

A

damages

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2
Q

What does expectation interest mean?

A

Means putting the innocent party in the same position post-breach that they should have been in had the contract been performed (Robinson v Harman).

  • need to make sure the innocent party does not receive a windfall
  • forward looking
  • speculative
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3
Q

What are windfalls?

A
  • a better result from the breach and damages than if the contract had been performed.
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4
Q

What are the 3 mechanism for calculating the expectation interest?

A
  • cost of cure
  • diminution in value
  • loss of amenity
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5
Q

What is the cost of cure mechanism?

A
  • The cost of cure represents the cost of substitute or remedial work required to put the claimant in the position he would have been in had the contract been properly performed.
  • The usual method of calculating the expectation interest in contracts involving defective works (eg where a building is not built to the contract specification) is the cost of cure (Birse Construction Ltd v Eastern Telegraph Co Ltd).
  • the claimant must act reasonably in relation to the defective works.
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6
Q

What is the diminution in value mechanism?

A
  • calculated by reference to the difference in value between the performance received and that promised in the contract.
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7
Q

What is the loss of amenity mechanism?

A
  • developed in Ruxley
  • a remedy where their loss is not economic in value, but nevertheless has a value to them
  • not really available in a commercial setting
  • rare
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8
Q

How do you calculate expectation damages?

A

expected profit - actual profit

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9
Q

What are the three ways damages can be calculated?

A

expectation, reliance or restitution interest

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10
Q

What is reliance interest?

A

A measure that allows the claimant to recover the expenses which have been incurred in preparing for, or in part performance of, the contract which have been rendered pointless by the breach.

  • backward looking
  • aims to put the claimant in the position they would have been in had they never contracted.
  • only be possible for the claimant to claim his reliance interest if the contract would have enabled him to recoup those expenses had it been properly performed.
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11
Q

Does reliance interest cover all expenditure?

A

No - only allows recovery of wasted expenditure

- losses incurred prior to breach, not those incurred as a consequence of breach.

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12
Q

How do you calculate reliance damages?

A

amount already incurred only

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13
Q

What is the general rule on damages for mental distress? What are the exceptions?

A
  • The general rule is that damages will not be awarded in relation to mental distress, anguish or annoyance caused by breach of contract (Addis v Gramophone Co Ltd).
  • exceptions:
    damages are allowed for non-pecuniary loss (loss of amenity) where a major object (though not the whole purpose) of the contract was to provide pleasure, relaxation and peace of mind (Farley v Skinner).
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14
Q

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

A
  • The general rule is that damages will not be awarded for loss of reputation.
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15
Q

What is the general rule on damages for loss of chance?

A
  • The loss of an opportunity is recoverable in damages if the lost chance is quantifiable in monetary terms and there was a real and substantial chance that the opportunity might have come to fruition. Otherwise, the loss of opportunity will be treated as too speculative.
  • competitions
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16
Q

How do the courts determine factual causation in contract?

A
  • common sense approach

- defendants breach should be dominant or effective cause of the loss

17
Q

How do the courts determine legal causation in contract?

A
  • NAI (if it was likely to happen - it will not break the chain)
18
Q

How do the courts determine remoteness in contract?

A

2 part test

  1. is the loss ordinary/ naturally arising from the breach?
    - look at the usual course of things & what loss is liable to result from the breach
    - if the loss is normal type of loss that would follow from the breach then it will be recoverable
  2. Did the defendants have sufficient actual knowledge of the particular and special circumstances
19
Q

What is the concept of mitigation?

A
  • Where one party has suffered loss resulting from the other party’s breach of contract, the injured party should take ‘reasonable steps’ to minimise the effect of the breach.
  • There is no obligation to mitigate, but losses attributable to a failure to do so are not legally recoverable. The innocent party cannot, therefore, seek compensation by the party in default for loss which is really due not to the breach itself, but its own failure to behave reasonably after the breach.
  • reasonable steps to mitigate may include accepting the performance offered by the defendant under a new contract even when that performance amounts to a breach of the original contract.
  • If the defendant’s offer of performance remains the best substitute performance (as it was in Payzu) then it would seem unreasonable not to go to that source.
  • There is no duty to mitigate a claim for a payment of a debt. This includes a claim for liquidated damages. This is because the amount is payable as a contractual right rather than as damages.
20
Q

What is restitution interest?

A

Whereby the claimant wants to claim the benefits to which the defaulting party gained due to breaching the contract

21
Q

What must have been shown for the court to grant restitution damages?

A
  • no other remedy is adequate
  • legitimate interest in depriving the defendant of his profit
  • needs to be an efficient breach (breach was cynical and deliberate/ breach enabled the defendant to enter into a more profitable contract elsewhere)
  • v. rare
22
Q

What are the remedies under the CRA 2015 for a non-conforming good?

A
  • short term right to reject (30 days)
  • right to repair or replace (within reasonable time w’o inconvenience)
  • right to a price reduction or final right to reject (within 6 months)
23
Q

What are the remedies under the CRA 2015 for a non-conforming digital content?

A
  • right to repair/ replacement (within a reasonable time)
  • right to a price reduction (s44)
    s42
24
Q

What are the remedies under the CRA 2015 for when a trader had no right to supply the digital content?

A
  • right to a refund (s45)
25
Q

What are the remedies under the CRA 2015 for when damage is cause to a device or other digital content?

A
  • right to repair or compensation (s46)

CONTRACT (9 decks)

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