Remedies For Breach Of Contract

Question 1

What is a remedy

Answer 1

A remedy is what the court gives to the party who has suffered through non performance of contract

Question 2

What remedies are available through bread of contract

Answer 2

Damages

Equitable remedies - specific performance or an injunction

Question 3

What is discretionary remedy

Answer 3

Equitable remedies the court awards if it sees fit

Question 4

Robinson v Harman

Answer 4

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

Question 5

Omak maritime ltd v Manila challenger shipping co

Answer 5

Court determined the claimant got a better deal as a result of the breach of contract so no damages were awarded

Question 6

Nominal damages

Answer 6

Small damages awarded as a result of a breach

Question 7

Contemptuous damages

Answer 7

Damages awarded on the basis the claim is correct but a waste of time to sue

Question 8

Two types of pecuniary damages

Answer 8

Loss of bargain / expectation loss

Reliance loss

Question 9

Cost of replacement meaning (market place rule)

Answer 9

Court awards difference between two prices as damages payment

Question 10

Ruxley electronics and construction ltd v Forsyth 1996

Answer 10

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

Question 11

Chaplin v hicks

Answer 11

Claimant was awarded speculative damages as she loss her opportunity to interview for a job due to insufficient notice.

Question 12

Courts comments on McGill v the sports and entertainment media group

Answer 12

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.

Question 13

Reliance loss anglia television v Reed

Answer 13

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.

Question 14

Non-pecuniary damages exceptions

Answer 14

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

Question 15

Non- pecuniary damages relaxation

Answer 15

Jarvis v swan

Holidayer was awarded damages as their holiday did not perform as suspected

Question 16

Farley v skinner

Answer 16

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

Question 17

Non- pecuniary damages- physically inconvenience

Answer 17

Milner v carnival plc

Damages for distress as holiday turned out to be problematic.

Question 18

How to claim damages

Answer 18

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

Question 19

Causation of a breach of contract

Answer 19

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.

Question 20

Rules established under Hadley v Baxendale remoteness of breach of contract

Answer 20

Loss that a reasonable person would have anticipated
Or

Defendant has been specifically warned about the loss by the claimant

Question 21

Hadley v Baxendale

Answer 21

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

Question 22

Victoria laundry v Newman industries

Answer 22

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

Question 23

The Heron II

Answer 23

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

Question 24

Transfield shipping inc v Mercator shipping inc (reconsidering remoteness)

Answer 24

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.

Question 25

Gives examples where specific performance will not be awarded

Answer 25

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

Question 26

What is specific performance

Answer 26

A court order compelling the performance of the contract

Question 27

Example if case where specific performance was granted

Answer 27

Posner v Scott Lewis A appointment of a porter was compelled

Question 28

When will an injunction not be awarded in breach of contract?

Answer 28

If damages is sufficient If it has the effect of forcing the performance of personal services contract

Question 29

3 steps for consumer rights act remedies S19 CRA

Answer 29

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

Question 30

Is consumer able to recover more than once for the same loss under consumer rights act?

Answer 30

No

Question 31

Terms of a 30 day right to reject

Answer 31

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

Question 32

Time period for refunds under rejected consumer goods

Answer 32

14 days

Question 33

S21 rejection of goods terms

Answer 33

Consumer may reject all goods supplied May reject just the faulty goods Reject some faulty goods and keep some faulty goods

Question 34

S23 repair or replacement terms

Answer 34

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

Question 35

What time limit is the consumer entitled to post to replacement or repair to reject goods?

Answer 35

Remainder of their 30 days or 7 days depending which is longer

Question 36

What section covers service contracts in CRA

Answer 36

S54 CRA

Question 37

S55 right to repeat performance remedies?

Answer 37

Only applies to situations where initial service wasn’t completed Trader is required to complete the work again at their own cost

Question 38

S56 right to price reduction remedies

Answer 38

Consumer is entitled to a reduction in price if job is not performed as expected

Question 39

Digital content remedies section in CRA

Answer 39

S42

Question 40

Digital right to repair s43 remedies

Answer 40

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

Question 41

s44 right to reduction remedies digital contract

Answer 41

Partial or full refund can be awarded if appropriate Must be paid within 14 days

Question 42

s45 right to a refund for digital content

Answer 42

Rights to a refund are allowed if the trader is selling something he has no right to sell

Question 43

Remedies for damage to a device or digital content s46

Answer 43

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