Remedies P3

Question 1

What remedies are available as of right under Common law remedies

Answer 1

Repudiation
Damages

Question 2

What is meant by Repudiation as a common law remedy

Answer 2

Means to treat the contract as ended
Rewind remedy
Only avaliable for breach of condition or sufficiently serious breach of innominate terms

Question 3

What is meant by Damages as a common law remedy

Answer 3

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

Question 4

What are the four types of damages

Answer 4

Nominal
Substantial
Exemplary
Speculative

Question 5

What are nominal damages

Answer 5

Minimal amount acknowledging a winning party, can be rewarded if no loss suffered but breach has occurred
(usually like a fiver)

Question 6

What are substantial damages

Answer 6

Normal claim accurately reflecting loss

Question 7

What are exemplary damages

Answer 7

Unusually large amount to show courts disapproval of parties at fault

Question 8

What are speculative damages

Answer 8

Awarded for mental distress and non-pecuniary losses
Not usually awarded
Traditionally courts would not allow recovery of damages
Difficult to prove e.g mental distress

Question 9

What are the 2 holiday cases that have claimed for speculative damages due to distress of holidays gone wrong

Answer 9

Jarvis V Swann Tours (1973)
Jackson V Horizon Holidays (1975)

Question 10

Which case involved claiming for speculative damages for the distress of a failed vasectomy

Answer 10

Thake V Maurice (1986)

Question 11

Which case showed that damages cannot be rewarded for hurt feelings

Answer 11

Addis V Gramophone Co LTD (1909)

Question 12

What are the two limitations to damages

Answer 12

Causation and Remoteness

Question 13

Explain what is meant by causation and remoteness being a limitation to damages

Answer 13

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

Question 14

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

Answer 14

Hadley V Baxendale (1854)

Question 15

What did the case of Victoria Laundry V Newman (1949)

Answer 15

Foreseeability is based on actual knowledge at time contract was made
Can be common or actual and implied

Question 16

What are the two ways of assessing Damages

Answer 16

Loss of bargain (expectation basis)
Reliance basis

Question 17

What is the method of Loss of bargain (expectation basis) as a way to assess damages

Answer 17

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

Question 18

What is the method of Reliance basis as a way to assess damages

Answer 18

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

Question 19

Which case showed Loss of bargain (expectation basis) for assessing damages

Answer 19

Chaplin V Hicks (1911)

Question 20

Which case showed Reliance basis for assessing damages

Answer 20

Anglia TV V Reed (1972)

Question 21

What is restitution

Answer 21

A repayment of any money or other benefits passed to the D in advanced of economic loss (only)

Question 22

However what did Lord Haldone say that the C has to do with damages

Answer 22

‘all reasonable steps to mitigate the loss consequent on the breach’

Question 23

Which case established the fact that C is under duty to mitigate there losses

Answer 23

British Westinghouse V London Underground (1912)

Question 24

What are liquidated damages

Answer 24

Amount of damages has been fixed by a term of a contract
Sum in the contract must be genuine
Pre-estimate of losses

Question 25

What is it called when the liquidated damages are not genuine to the circumstance

Answer 25

It is classed as a penalty clause = not enforceable

Question 26

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

Answer 26

Cavendish Square V Makdessi (2015)

Question 27

What is the test for a penalty clause for liquidated damages

Answer 27

Out of all proportion to legitimate interest of the innocent party No = liquidated damages Yes = penalty clause

Question 28

Which case also enforced the 'Out of all proportion' rule for identifying a penalty clause

Answer 28

Parking Eye LTD V Beavis (2015)

Question 29

What are unliquidated damages

Answer 29

Parties have not agreed an amount of damages in advances in the event of a breach

Question 30

What assessment do the court made when it comes to unliquidated damages

Answer 30

'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

Question 31

Are Equitable remedies available as of right

Answer 31

No

Question 32

Are equitable remedies restricted by causation and remoteness

Answer 32

No - they go beyond powers of common law Ensure equitable remedies are appropriate and just

Question 33

What is the quote used for equitable remedies

Answer 33

'He who comes to equity must come with clean hands'

Question 34

What is equitable remedies - Rescission

Answer 34

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)

Question 35

When is equitable rescission remedies available

Answer 35

Only when it is possible to go back

Question 36

Which 2 cases are used for availability of equitable remedies

Answer 36

Vigers V Pike - minerals could not be put back to the mine Long V Lloyd - lorry driver had affirmed and acknowledged the misrepresentation

Question 37

What is specific performance given by the courts

Answer 37

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

Question 38

What are the statutory remedies avaliable

Answer 38

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