Termination, Breach, Damages and Equitable Remedies

Question 1

Breach Definition

Answer 1

Where a party without lawful excuse fails or refuses to perform what is due under the contract

Remedy for a breach is Affirmation and damages or Termination

Party Alleging Breach has a burden of proof

Question 2

When May plaintiff terminate?

Answer 2

When 1 party refuses to perform or is unwilling to perform or fails to perform, it gives the innocent party a right to terminate the contract and seek damages
Repudiatory Conduct

Universal cargo Carriers v Citati
The Luxmar
Eminence Property developments v Heaey

Question 3

Termination will be allowed/ may be allowed on:

Answer 3

Breach of a Condition
Union Eagle v Golden Achievement

On construction of Contract:
Schüler v Wickman

See Innominate terms effect

Question 4

Anticipatory breach

Answer 4

Contract requires performance on a certain day and it is very clear that the performance will not be possible because of the other party making that clear, you can terminate and sue for damages before performance required
Hochester v De La Tour

Question 5

Affirmation of Contract

Answer 5

Innocent party can choose to affirm the contract and claim damages instead.

This is not possible if the repudiatory breach by conduct is continuing after affirmation
Johnson v Agnew
White & Carter Councils v Macgregor

Question 6

Damages purpose

Answer 6

To compensate the injured party got lose suffered by a breach that causes the loss

Question 7

Damages for Discomfort

Answer 7

Only claimable in cases of Holidays
Jarvis v Swan Tours
Jackson v Horizon Holidays

Question 8

Damages for injury to reputation

Answer 8

Only recoverable where One party has a duty of Care

Malik v BCCI

Question 9

Expectation Interest

Answer 9

Put parties where they would expect to be at the end of the contract (mostly this one)

D buys a car for 20k its worth 25k but defective so worth 10k
25k-10k=15k

Question 10

Reliance Interest:

Answer 10

Put the parties where they would have been before they relied on the contract; back to the beginning before promise made to their detriment
Usually for a party that has done a bad deal

D buys a car for 20k worth 15k and defective so worth 10k
20k-10k=10k

Question 11

Restitution Interest

Answer 11

Innocent party gets to choose between reliance or expectation interest; rare:
Innocent Party (c)
1) D is enriched
2) enriched at C’s expense
3) unjust for D to retain benefit without compensation C

Question 12

How to measure the Loss

Answer 12

Reasonable Valuation of loss:
Paula Lee v Zehil
South Australia Asset management v York Montague

Loss of Amenity ( won’t use damages for the intended purpose of fixing)
Ruxley v Forsyth
Tito v Waddell

Question 13

If Damages cause Loss of income they can be recoverable if:

Answer 13

Aerospace Publishing v Thames Water

1) Diversion of staff
2) caused significant disruption to business
3) reasonable to infer that revenue would have been generated

Question 14

Remoteness

Answer 14

can’t claim for damages for loss suffered if you can’t show that breach caused Loss

Hadley v Baxendale:

1) Arises naturally from the Breach itself; caused by Breach
2) If it would have been in contemplation of the parties at the time of contracting

Victoria Laundry v Newman
The Heron II
Parsons v Uttley Ingham

Question 15

Duty to mitigate

Answer 15

1) Cant recover for any loss that could have been avoided by taking reasonable steps
2) Cant recover for any loss actually avoided
3) Cant recover for losses incurred while attempting to mitigate

Payzu v Suanders

Question 16

Specific Performance

Answer 16

You compel someone to fulfill the terms in the contract

Wont be awarded if:
1) it causes severe hardship on the Defendant

2) if D has acted dishonestly/unjustly
3) Plaintiff fails to perform a promise that induced Defendant into contract
4) Impossible for other party to comply with the order

Question 17

Specific Performance and Personal service contracts

Answer 17

You cannot force someone to do something against their will so all Positive action cannot rely on SP

BUT Negative obligations under a contract can be Enforced through SP

Warner Bros v Nelson

Question 18

Mutuality of Remedy

Answer 18

SP must exist or be possible for both parties 1 cannot proves a thing while the other a performance

Question 19

Damages in lieu of Specific Performance

Answer 19

Damages can be awarded instead of Specific Performance

Wroth v Tyler

Question 20

Injunctions

Answer 20

Prohibitory: you can’t do something

Mandatory: Requires D to revers the effect of an existing breach.