Remedies P3 Flashcards
What remedies are available as of right under Common law remedies
Repudiation
Damages
What is meant by Repudiation as a common law remedy
Means to treat the contract as ended
Rewind remedy
Only avaliable for breach of condition or sufficiently serious breach of innominate terms
What is meant by Damages as a common law remedy
Available for breach of condition and warranty
Only remedy for warranty
Available for breach of innominate terms (condition or warranty)
Fast-forward remedy - put parties in position if contract had been properly performed
What are the four types of damages
Nominal
Substantial
Exemplary
Speculative
What are nominal damages
Minimal amount acknowledging a winning party, can be rewarded if no loss suffered but breach has occurred
(usually like a fiver)
What are substantial damages
Normal claim accurately reflecting loss
What are exemplary damages
Unusually large amount to show courts disapproval of parties at fault
What are speculative damages
Not usually awarded
Traditionally jobs would not allow recovery of damages
Difficult to prove e.g mental distress
What are the 2 holiday cases that have claimed for speculative damages due to distress of holidays gone wrong
Jarvis V Swann Tours (1973)
Jackson V Horizon Holidays (1975)
Which case involved claiming for speculative damages for the distress of a failed vasectomy
Thake V Maurice (1986)
Which case showed that damages cannot be rewarded for hurt feelings
Addis V Gramophone Co LTD (1909)
What are the two limitations to damages
Causation and Remoteness
Explain what is meant by causation and remoteness being a limitation to damages
C must have causes C’s loss using the ‘But for’ test
C’s loss must be reasonable foreseeable
What the reasonable man may have contemplated
What D actually know
Which case showed that losses need to be reasonably foreseeable based on common law or actual knowledge. D was not told of the consequences of his delay so mill shaft loss was unforeseeable
Hadley V Baxendale (1854)
What did the case of Victoria Laundry V Newman (1949)
Foreseeability is based on actual knowledge at time contract was made
Can be common or actual and implied
What are the two ways of assessing Damages
Loss of bargain (expectation basis)
Reliance basis
What is the method of Loss of bargain (expectation basis) as a way to assess damages
Normal contractual basis for breach of contract which compensated for loss of bargain
What you expected to get at the end of the contract as a possibility
Fast forward remedy
What is the method of Reliance basis as a way to assess damages
Allows c to recover for expenses they have incurred in advance of a contract that has been breached
If you’ve relied on someone and incurred expenses your entitled to it back
Which case showed Loss of bargain (expectation basis) for assessing damages
Chaplin V Hicks (1911)
Which case showed Reliance basis for assessing damages
Anglia TV V Reed (1972)
What is restitution
A repayment of any money or other benefits passed to the D in advanced of contract that was breached
However what did Lord Haldone say that the C has to do with damages
‘all reasonable steps to mitigate the loss consequent on the breach’
Which case established the fact that C is under duty to mitigate there losses
British Westinghouse V London Underground (1912)
What are liquidated damages
Amount of damages has been fixed by a term of a contract
Sum in the contract must be genuine
Pre-estimate of losses
What is it called when the liquidated damages are not genuine to the circumstance
It is classed as a penalty clause = not enforceable
Which case developed the test from Dunlop Tires to ask whether clause imposed a detriment out of all proportion to the legitimate interest of the innocent party. if so it will be a penalty and unenforceable
Cavendish Square V Makdessi (2015)
What is the test for a penalty clause for liquidated damages
Out of all proportion to legitimate interest of the innocent party
No = liquidated damages
Yes = penalty clause
Which case also enforced the ‘Out of all proportion’ rule for identifying a penalty clause
Parking Eye LTD V Beavis (2015)
What are unliquidated damages
Parties have not agreed an amount of damages in advances in the event of a breach
What assessment do the court made when it comes to unliquidated damages
‘Put the victim of the breach , so far as possible and as far as the law allows, into the position he would have been in if the contract had not been broken
Are Equitable remedies available as of right
No
Are equitable remedies restricted by causation and remoteness
No - they go beyond powers of common law
Ensure equitable remedies are appropriate and just
What is the quote used for equitable remedies
‘He who comes to equity must come with clean hands’
What is equitable remedies - Rescission
As though the contract had never existed and both parties return to original pre-contractual position
Exactly same as repudiation but for relating to equity (repudiation is for common law)
When is equitable rescission remedies available
Only when it is possible to go back
Which 2 cases are used for availability of equitable remedies
Vigers V Pike - minerals could not be put back to the mine
Long V Lloyd - lorry driver had affirmed and acknowledged the misrepresentation
What is specific performance given by the courts
Rarely granted
When the courts can issue a specific order that the parties can carry out
Specific orders will not be awarded if damages are more suitable
Specific orders will never be available for contracts of personal service
What are the statutory remedies avaliable
S20, 23, 24, 55 and 56 of the CRA 2015
The Law Reform (Frustrated Contracts) Act 1943:
S1(2) money paid is owed back, money to be paid is no longer owed, courts can order a just sum for money paid
S1(3) valuable benefit obtained can be paid as just sum to be paid
