Remedies..

what are the two main sources of remedy?

what are the two main sources of remedy?

legal and equitable

what are the legal remedies? DRS

Damages
Rejection
Statute (CRA 2015)

what are the equitable remedies? SIR

Specific performance
Injunction
Recission

At who's discretion are equitable remedies given at? what do they act as?

given at the court's discretion and act as a 'safety net' if legal remedies aren't appropriate

what is specific performance?

court orders other party to perform their part

What is injunction?

court orders other party to stop something

what is rescission?

court puts both parties in the position they were before the contract (mainly for misrep)

AO1 summary big picture

when a contract goes wrong the injured party will want a remedy. This can be a legal or equitable remedy. whichever remedy the injured party is seeking, they have a duty to mitigate their loss

what are damages?

Damages are the main for of legal remedy. They are money compensation where the aim is to put the injured party back in the position they would have been if the contract had been completed

what 3 types can damages be?

nominal, speculative, or compensatory (main form)

what are nominal damages?

breach but no actual loss. Tiny amount giving proof there has been breach and contract is ended

what are speculative damages?

court tries to compensate for loss of chance or mental distress (but they try to avoid these bc very difficult to calculate)

which case shows the awarding of speculative damages?

Chaplain v Hicks
(actress wrongly prevented from auditioning, gets £100 speculative damages)

can you gat speculative damages for mental distress?

not when a commercial contract (Addis v Gramophone ltd)

when can you claim speculative damages for mental distress?

if the point of the commercial contract was pleasure

which two cases show being able to claim speculative damages if the point of a commercial contract was pleasure?

Cook v Spanish Holidays (no room on wedding night)
Jarvis v Swan Tours Ltd (house party holiday turns out to be just him)
Jackson v Horizon holidays expanded damages for whole family's distress and disappointment

what are compensatory damages?

Min form of damages where court tries to compensate actual loss.

what is the difficulty about working out compensatory damages?

working out causation and remoteness of damage

which famous case shows remoteness of damage?

hadley v Baxendale

Hadley v Baxendale

mill crankshaft broke. Gave to courier to replace. Not sent for repair for 7 days and could not work in this time. Not entitled to damages of lost productivity as courier was not aware of urgency of request.
Courier not liable for loss of profit. Reasonable to assume H had spare crankshaft/could borrow one

what are the two tests for remoteness? (compensatory damages)

(if either proved, D is liable)
- objective test
- subjective test

what is the objective test for remoteness?

what loss id the natural consequence of breach?
there must be a causal link between D's breach and C's loss ie is the breach the main reason for loss?

what is the subjective test for remoteness?

- what specific knowledge did the parties have when the contract was made?
- if they had knowledge then damages may be awarded

which case passed the objective test but failed the subjective test for remoteness for compensatory damages?

Victoria laundry v Newman industries Ltd

Victoria Laundry v Newman Industries

Normal profits are foreseeable (so got loss of normal profits, passed objective test), but profits from a special contract are not (so didn't get damages for special contract, failed subjective test)

what can the idea of knowledge (subjective test for remoteness for compensatory damages) also apply to?

The Heron II - 'knowledge' also includes implied knowledge based on the reasonable man

which case shows the subjective test also applies ro implied knowledge based on the reasonable man?

the Heron II - reasonable ship owners would know sugar was intended to be sold at sugar market, knew that prices fluctuated and therefore knew there was a chance of loss of profit from selling the sugar if the ship was late

what does the test for remoteness simply depend on? Which case shows this?

the test for remoteness simply depends on proof that loss could be anticipated - H Parsons Ltd v Uttley Ingham (death of pigs could be anticipated from mouldy feed due to unopened ventilation hatch)

How does the court assess how much the defendant should get/ what 3 areas do they look at? BRR

loss of Bargain
Reliance loss
Restitution

what is loss of bargain?

putting the claimant in the same financial position as if the contract had been properly performed

what are the 4 positions that can be taken with loss of bargain? (assessment of compensatory damages)

1. inferior goods = diff in value of goods to what they should have been
2. delivery = failure to delver and an alternative supply had to be found (amount = cost diff) or failure to accept delivery and an alternative marjet had to be found
3. loss of profit = loss of profit c would have been able to make
4. loss of chance = (rare) damages where loss is entirely speculative (as in Chaplin)

what is reliance loss?

c can recover any expenses incurred in advance of the contract that has been breached. Usually made when it is too difficult to calculate any loss of profit

which case shows reliance loss being compensated?

Anglia Television Ltd v Reed
(A paid lots preparing for a film. Actor pulled out and replacement couldn't be found. A could recover expenses)

what is restitution?

the defendant is required to pay back or make up for damages

what do parties have a duty to do?

mitigate their loss (or damages will be reduced)

which case shows a duty to mitigate loss?

British westinghouse Electric v Underground Electric

... but the parties only have to do what is reasonable to mitigate loss. which case shows this?

Pilkington v Wood (P could have saved time by suing seller not solicitor but this was going to extraordinary lengths and not required)

what are liquidated damages?

an amount set by parties when contract is formed which will be paid if there is breach
accepted by the court provided it is an accurate assessment of loss

which case developed rules on what are penalties (so not liquidated damages)?

Dunlop tyres v New garage and Motor Co
- extravagant sum = always penalty
- large sum for failure to pay small debt = probs penalty
- single amount for variety of breaches = likely penalty
wording used by parties is not conclusive

What are equitable remedies?

the non-monetary remedies, such as:
• specific performance;
• injunctions;
• recission
only used when damages is not an adequate or fair remedy