Remedies For Breach Of Contract Flashcards
What is a remedy
A remedy is what the court gives to the party who has suffered through non performance of contract
What remedies are available through bread of contract
Damages
Equitable remedies - specific performance or an injunction
What is discretionary remedy
Equitable remedies the court awards if it sees fit
Robinson v Harman
Breach of contract was explained that the affected party is to be placed into the position they were in prior to the contract by way of damages
Omak maritime ltd v Manila challenger shipping co
Court determined the claimant got a better deal as a result of the breach of contract so no damages were awarded
Nominal damages
Small damages awarded as a result of a breach
Contemptuous damages
Damages awarded on the basis the claim is correct but a waste of time to sue
Two types of pecuniary damages
Loss of bargain / expectation loss
Reliance loss
Cost of replacement meaning (market place rule)
Court awards difference between two prices as damages payment
Ruxley electronics and construction ltd v Forsyth 1996
Pool wasn’t built to correct depth. Claimant tried to sue for recorrection work and new pool. Court awarded “loss of amenity” damages in the breach as they felt rebuilding the pool was unnecessary
LOSS OF ENJOYMENT NON PECUNIARY DAMAGES
Chaplin v hicks
Claimant was awarded speculative damages as she loss her opportunity to interview for a job due to insufficient notice.
Courts comments on McGill v the sports and entertainment media group
The key principle is on the hypothetical acts of a third party. Claimant must prove that the defendant acted against the contract for personal gain and establish causation.
Reliance loss anglia television v Reed
Actor dropped out last minute of a film. Film company were unable to determine profit therefore a breach was brought forward for the cost of production and preparation until the point of the actor quitting. It was awarded in damages.
Non-pecuniary damages exceptions
The object of the contract is to provide pleasure, relaxation, peace of mind or freedom of distress damages are recoverable.
The breach caused physical inconvenience and discomfort
Non- pecuniary damages relaxation
Jarvis v swan
Holidayer was awarded damages as their holiday did not perform as suspected
Farley v skinner
Pleasure doesn’t need to be the only objective of the contract. Surveyor was obstructed to value a house and provide report on aircraft noise. Surveyor failed to perform this part of the contract and claimant sued.
Pleasure of enjoying the house was affected by the noise of aircraft
Non- pecuniary damages- physically inconvenience
Milner v carnival plc
Damages for distress as holiday turned out to be problematic.
How to claim damages
Claimant must show
Breach of contract
How the breach was caused and explain the loss
The loss isn’t too remote from the breach
That the claimant had mitigated his losses
Causation of a breach of contract
C&P haulages v Middleton
Claimant fixed equipment into a rented garage. When he left garage tried to claim losses for equipment left. The contract had a honour clause which stated any fixtures put in are to be left. No breach was awarded.
Rules established under Hadley v Baxendale remoteness of breach of contract
Loss that a reasonable person would have anticipated
Or
Defendant has been specifically warned about the loss by the claimant
Hadley v Baxendale
Mill owner needed mill fixing. Sent it to be fixed by defendant. Defendant said would return within 24 hours but didn’t. The claimant tried to issue a breach for losses as a result of mill part not being available for 7 days and the losses they incurred for income due to the machine being unable to work. The court deemed the loss not to be recoverable as the defendant was not aware of the potential loss as the claimant didn’t inform him the working off the mill relied upon that one part
Victoria laundry v Newman industries
Late delivery if a boiler for laundry
Laundry list profits on its business which were recoverable
Potential new client cost was not recoverable as it was not reasonably foreseeable loss
The Heron II
The shipping company was late in sending the sugar. When it was sold the price of sugar dropped. Difference in price was recoverable due to delay as it was known that sugar prices fluctuated
Transfield shipping inc v Mercator shipping inc (reconsidering remoteness)
Mercator has been hired a boat from another hire company. The boat arrived 9 days late. Loss under breach was different as each party worked out the loss based on the commercial rate and the market rate of a days hire. Court decided lower figure was to be paid as it was a foreseeable loss.
Gives examples where specific performance will not be awarded
Where damages would be an adequate remedy
If the court needs to provide constant supervision that the order is being met.
Not available to contract if personal services
If it is subject to mutuality. (Each party is entitled to compelling it the contract)
Party seeking remedy must have conducted himself properly
What is specific performance
A court order compelling the performance of the contract
Example if case where specific performance was granted
Posner v Scott Lewis
A appointment of a porter was compelled
When will an injunction not be awarded in breach of contract?
If damages is sufficient
If it has the effect of forcing the performance of personal services contract
3 steps for consumer rights act remedies S19 CRA
Short term right to reject within 30 days of ownership
Right to request a replacement or repair
Right to a price reduction or reject goods
Is consumer able to recover more than once for the same loss under consumer rights act?
No
Terms of a 30 day right to reject
Time starts once consumer has purchase of the items
Time limit reduces if goods are perishables
Period of 30 days is held if item is being replaced or repaired
Time period for refunds under rejected consumer goods
14 days
S21 rejection of goods terms
Consumer may reject all goods supplied
May reject just the faulty goods
Reject some faulty goods and keep some faulty goods
S23 repair or replacement terms
Trader is required to replace the item of repair within reasonable time
Repair or replace without causing inconvenience to consumer
Best any costs that are incurred
CONSUMER MUST; allow trader reasonable time to repair or replace item before asking to reject contract
What time limit is the consumer entitled to post to replacement or repair to reject goods?
Remainder of their 30 days or 7 days depending which is longer
What section covers service contracts in CRA
S54 CRA
S55 right to repeat performance remedies?
Only applies to situations where initial service wasn’t completed
Trader is required to complete the work again at their own cost
S56 right to price reduction remedies
Consumer is entitled to a reduction in price if job is not performed as expected
Digital content remedies section in CRA
S42
Digital right to repair s43 remedies
Ensure digital content conforms to contract. This could be a software update
Must be completed in reasonable time without causing consumer inconvenience
Trader must bear cost of repair
s44 right to reduction remedies digital contract
Partial or full refund can be awarded if appropriate
Must be paid within 14 days
s45 right to a refund for digital content
Rights to a refund are allowed if the trader is selling something he has no right to sell
Remedies for damage to a device or digital content s46
A free or paid for device / service from the trader which causes damage to a consumers device consumer is entitled to an offer of repair at traders cost or compensation
