Remedies for Breach of contract

Question 1

Remedies by operation of the law

Answer 1

remedies injured party is entitled to:

• claims for a specific performance (natural remedy)
• cancellation of contract (drastic remedy)
• damages (combination remedy)

Question 2

Remedies by agreement

Answer 2

• when parties agree on their own remedies
• intended to exclude/replace common-law remedies
• examples:
  
  • –> acceleration clause
  • –> cancellation clause (lex commisoria)
  • –> penalty clause

Question 3

Purpose of damages

Answer 3

• to hypothetically place the injured party in a position where they would have been if there wasn’t a breach of contract
• the “positive interest”

Question 4

Principles pertaining to irrecoverable damages (in absence of penalty clause)

Answer 4

• plaintiff not entitled to damages merely because breach of contract occurred
• damages in the form of money can only be claimed once
• in calculations, plaintiff’s financial position will be compared to the financial position they would have been in if the wasn’t breach of contract
• amount must be diminished accordingly
• damages must be direct result of breach of contract
• damages may only be claimed as foreseen or should have been foreseen (general and special damages)

Question 5

General vs Special damage

Answer 5

• General damage
  
  • –> flows naturally from breach of contract
  • –> parties are presumed to have foreseen such damage
  • –> plaintiff must prove only extent of damage
• Special damage
  
  • –> not natural/probable as result of breach of contract
  • –> plaintiff must prove parties did foresee damage at time of conclusion of contract and
  • –> that express or tacit agreement exists stating these damages were recoverable

Question 6

Conventional Penalties Act

Answer 6

p. 78 of textbook and p. 87 of pdf