common law remedies

What does ‘breach’ mean?

-failure to perform

What are damages?

-monetary compensation

What is a contract?

-a social relationship of agreement

What are the two types of surplus at the end of an economic exchange?

-consumer surplus

-money profit surplus

What is expectation interest?

-    equates to the net value of what the innocent party would have received if the contract had been performed.

-is the profit you expect to make

-how much better off you are

What is reliance interest?

-The extent to which the innocent party is worse off because of relying on the contract

What is the prefered approach for compensating a client for wasted reliance ?

-giving the claimant the value of his expectancy and trying to put him in the position he would have been if the contract had been performed

What does a ‘bad bargain’ refer to?

-  the bargain would be bad even if the defendant performs as promised

How do you calculate expectation damages?

-Takeaway what the innocent party saved from the total expected benefit of the contract.

How do you calculate reliance loss?

-how much are you out of pocket, all wasted expenses included

How do you protect expectation interest?

-protect reliance interest

What are restitutionary damages? 

-require the defendant to restore gains made at the claimant's expense, rather than compensate a claimant for loss suffered

What is legal realism?

-looking at what judges have done to work out rules from that

What is a primary obligation?

-the party's initial duty outlined within a contract

What is a secondary obligation? 

-arises when this initial obligation is breached and is usually intended to resolve the breach. Secondary obligation is the remedy.

What is the rule in Robinson v Harman?

-‘[The claimant} is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed’. This enforces that the claimant shall receive damages to equal what they would have received if there had not been a breach in contract.

What are nominal damages?

-usually rewarded when there was no loss caused by the breach of the contract and is a much lower sum

What are substantial damages?

-rewarded when there is an actual loss and this was reasonably foreseeable and caused by the breach

How are substantial damages linked to the doctrine of causation?

-the breach of contract had caused the client to miss out on an expected gain which the substantial damages then resolve

What are certain losses?

-losses that have been proven to have occurred

What are speculative losses?

-may or may not happen and usually are not rewarded by the courts, based off a possibility of a loss occurring

What is reasonable contemplation?

-whether the defendant should have foreseen the effects that breaching the contract would have had on the defendant

What is proximity?

-relationships between the parties.

What is the first limb of Hadley v Baxendale? 

-a contracting party is liable for losses, is if they arise naturally, in accordance with the usual course of things.

What is the second limb of Hadley v Baxendale? 

-considers the facts such as may reasonably have been considered by both parties at the time they made the contract, because of the breach of it.

What is the requirement of mitigation?

-a qualification for the rule that damages are designed to put the claimant in the position as if the contract had been completed

Why is mitigation imposed? 

-to force the claimant to minimize their losses and get as close to the position as if the contract had been performed as possible to be rewarded damages for the remainder of the losses. This prevents losses from issues that could have been avoided

What is cause in fact?

-certain losses compensated and uncertain losses are not compensated

What is cause in law?

-proximate losses compensated, uncertain losses are not compensated

What is mitigation?

-unavoidable losses compensated, avoidable losses not compensated

What happens once a contract is breached?

-secondary obligation crystallises, have to provide a remedy