Remedies: Mitigation of Loss and Terms Attempting to Quantify Damages

Question 1

Westinghouse Electric v Underground Electric Railways

Answer 1

• It was necessary to balance loss against gain when the amount of the damages was being calculated.

Question 2

Thai Airways v K I Holdings

Answer 2

• The lease of substitute aircraft which were more fuel efficient had to be taken into account.

Question 3

Dunlop Pneumatic Tyre Co. v New Garage and Motor Co.

Answer 3

• The case sets out the traditional rules as to when the term is a liquidated damages clause or a penalty.

Question 4

Cavendish Square Holding BV v Talal El Makdessi and Parking Eye Ltd v Beavis

Answer 4

• Sets out new tests for being able to rely on a penalty clause.

Question 5

Upton Rural District Council v Powell

Answer 5

• Where a contract for services that is silent on the issure of remuneration, quantum meruit applies.

Question 6

Steven v Bromley

Answer 6

• Where the circumstances of the case show that a fresh agreement can be implied in place of the original one, quantum meruit applies.

Question 7

De Barnady v Harding

Answer 7

• Where a party has elected to consider the contract discharged by the other’s breach or where a party has been prevented from performing by the other party quantum meruit applies.