Remedies for Breach Flashcards
Rescission
Terminating the contract because of a breach of a “matter of vital importance - I mean a matter touching the very existence of the contract” - Lord Maclaren (Collard v Carswell)
Valid when; Defective Performance, Late Performance, Refusal to Perform
Wade v Waldon
Rescission.
Wade, a comedian, had a contract with Waldon to perform two shows in Glasgow to which he had to confirm 14 days prior and would receive advertising materials. Wade failed to do this therefore Waldon sought to terminate the contract on breach. Wade then sued Waldon for breach as he had not received advertisements.
Held - There was not a material breach as it did not affect the performance itself which was the purpose of the contract. Rescission was not justified therefore Wade was entitled to damages.
Defective sub-standard performance
Lindley Catering v Hibernian Football Club
Rescission
LC entered into a 5 year contract with HFC. 2 years in, HFC terminated the contract due to complaints of poor performance.
Held - LC were in breach but rescission was not justified as they had not been given time to rectify their service. LC were entitled to £7000 damages.
Late Performance
Rodger (builders) Ltd v Fawdry
Rescission
It was held that not paying for heritable property (land/buildings) on the due date was not a ground for rescission.
The Ultimate Procedure can be used to determine how late performance can be if it is not stated in the contract.
Contract Clause - Late Performance
Bell Bros v Aitken
Rescission
Hire of motor cars. The contract included a clause which stated that if there was a breach of contract then the hirer would have to pay liquidate damages which equalled the value of the car when they first begun the hire.
Retention
If A is in breach then B is allowed to withhold their performance providing that the obligations are interdependent.
Inveresk Plc v Tullis Russell Papermakers Ltd
Retention
I sold a brand of paper to T and agreed to continue the manufacture, distribute and selling of the paper for a period after the sale. There was a dispute about payment from each of the party so T did not pay. The court had to decide whether the obligations were interdependent.
Held - One obligation of a party is equal to all obligations of the other party.
Special Lien
Retention
A party can retain possessions which it took in order to perform on it. The party in possession can retain the thing until the other party has performed its obligation.
E.g. - A car garage can keep the car until the other party pays.
General Lien
Retention
Certain relationships only.
Property can be kept for all debts owned whether it relates to the property being retained or not.
Financial Loses - Calculation of Damages
Grant v Ullah
Financial Loses
They were selling their house to a buyer which one week later pulled out. The house was then sold 4 months later for a lesser price.
Held - They received damages for the difference between the prices of the first and second sale.
Financial Loses - Calculation of Damages
Methods
Methods of calculating financial loses
Cost of Curing - how much it cost to fix something as a result of the breach
Difference in Value - how much money was lost a result
Non-Financial Loses
Solatium
Damages for pain or suffering (including delayed flights)
Addis v Gramophone
Solatium
A was fired and claimed that it was embarrassing and sought damages for distress/upset.
Held - The court said that it was not a valid claim therefore damages are not typically given for distress/injured feelings.
Dieson v Samson
Solatium
Wedding photographer forgot to turn up to the wedding. There was no financial loss but it caused great upset and distress on the day so the couple were awarded £80.
Farley v Skinner
Solatium
F bought a house near the airport and asked the surveyor if there would be much noise as he would like like a quiet home. When he moved there was a lot of noise.
Held - F received £10000 for his loss of pleasure.
