Week 9: Enforcement Of Obligations And Judicial Remedies

Question 1

What is an action for debt?

Answer 1

Simple payment of money, can add interest

Question 2

What happens when person cant pay debt?

Answer 2

Court issued decree of diligence, judicial seizure of property

Question 3

What is specific implement?

Answer 3

handed down by court to try and force breaching party to complete their obligations

To do with everything except money. Difficult for large companies and prison.

Question 4

When is it not applicable

Answer 4

1. Money
2. Personal relationship
3. Performance is impossible
4. Where money would be adequate

Question 5

Although used rarely when can it be used?

Answer 5

For long lease contracts. Companies move out early from long leases, a breach of contract, due to customers not coming.

Question 6

Cases of this?

Answer 6

Highland & Universal Properties Ltd v Safeway Properties

S tried to leave area as profit went down, specific implement forced them to stay there. Sold on as a cinema.

Co-operative Insurance Society v Argyll Stores Ltd

Specific implement given in Scottish cases but not English.

Question 7

What is interdict?

Answer 7

The prohibitive implement that prevents a party from doing something. Example of this is restrictive covenant.

Question 8

When can damages be claimed?

Answer 8

1. The losses were caused by the breach of contract, however minor
2. The damages claimed are not too remote
3. The pursuer has mitigated any losses suffered

Question 9

How are damages measured?

Answer 9

They are measured by the loss of the innocent party and not the gain of the guilty as per Teacher v Calder

Question 10

What is loss?

Answer 10

An economic concept, lost profit on resale, extra cost of replacement, cost of curing defective performance

Question 11

Cases?

Answer 11

Ruxley Electronics v Forsyth:

Diver installed swimming pool but wasn’t deep enough. Was in principle entitled for damages. Difference of value nil, cost of cure would mean for free. 2.5k loss of amenity. Turned court against him.

Question 12

Can you have emotional loss?

Answer 12

Yes as per Jarvis v Swan Tours and solicitors disappointing holiday. Must be to provide pleasure or prevent pain

Question 13

Stigma?

Answer 13

As per Malik v BCCI, couldn’t get job after working for bank that engaged in illegal activity

Question 14

What is the test for causation?

Answer 14

The but for, But for the breach of contract would the party have suffered loss? As per A/B v Monarch Steamship

Question 15

What is remoteness of Damage?

Answer 15

Must not be too remote, or defender wont be liable. Loss must be reasonably foreseeable. Predictability contracts and damages

Question 16

Cases?

Answer 16

Victoria Laundry v Newman Industries

Could only claim losses that were reasonably foreseeable for a washing company without machines, not super profitable contracts with Monarchy.

Question 17

Parson v Uttley Ingham

Answer 17

Held that unforeseeably large loss may be still recoverable if the loss was of a foreseeable type. Pig food dispenser

Question 18

Transfield Shipping Inc v Mercator Shipping

Answer 18

O hires out ship to C1 and C2. C1 arrives 20 late, preventing C2. Rearrange contract for lesser price. 8k less for 191 days. Reasonable foreseeable only 20 days due to shipping abnormality in market.