Damages Flashcards

1
Q

Condition

A

Term going to the root of the contract

Remedy is termination or damages

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2
Q

Warranty

A

Less important term

Remedy is damages

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3
Q

Innominate Term

A

Neither condition nor warranty
(Remedy depends on consequences)
Hong Kong Fir

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4
Q

Test for determining classification or term found in

A

Schiler v Wickman

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5
Q

Test for determining classification of term:

Factors to consider

A
  • circumstances surrounding making of contract
  • contract as a whole
  • whether the parties described the term as a condition or warranty (this can be rebutted)
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6
Q

Damages are intended to compensate claimant, not punish defendant

A

Obagi

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7
Q

Expectation Loss

Robinson v Harman

A

Aim is to put claimant in the position they would have been in had the contract been properly performed

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8
Q

Robinson v Harman

Expectation loss takes into account

A
  • difference in value
  • loss of amenity (Ruxley Electronics)
  • loss of opportunity (Chaplin v Hicks)
  • loss of pleasure; usually no (Addis v Gramophone) unless contracts purpose was claimant’s enjoyment (Jarvis v Swans Tours)
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9
Q

Reliance loss

A

Aim is to put claimant in position he would have been in had the contract never been entered into
(Anglia TV)

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10
Q

Specified damages clause

A

A genuine attempt to pre-estimate the loss likely to result from a breach

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11
Q

Penalty

A

An attempt to put pressure on a party to perform the contract
Not enforceable

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12
Q

Assessing whether there is an agreed damages clause

A

Need to assess clause at time contract was made, not time of breach

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13
Q

Dunlop Guidelines

A

Is sum extravagant or unconscionable? yes=penalty

If breach consists of not paying money, or sum stated in clause is greater than amount ought to have been paid = penalty

If single lump sum payable on happening of one or more event = presumed penalty

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14
Q

Cavendish Square Holding v Makdessi guidelines

A
  • Was there a commercial justification?
  • Was the provision extravagant or oppressive?
  • Was deterrence its predominant purpose?
  • If relevant, was it negotiated on a level playing field?
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15
Q

Hadley v Baxendale Limb 1

A

Usual loss arising in ordinary course of things

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16
Q

Victoria Laundry Limb 1

A

Liability is in respect of imputed knowledge that parties are assumed to know

17
Q

Hadley v Baxendale Limb 2

A

Loss reasonably supposed to have been in contemplation of both parties, at time contract made, as the probable result of a breach

18
Q

Victoria Laundry Limb 2

A

If it is an unusual loss, D is liable if they had actual knowledge of special circumstances

19
Q

Heron II

A

Degree of probability is ‘not likely’ (narrower remoteness test than tort)

20
Q

If type of loss is within reasonable contemplation of parties, all loss of that type will be recoverable even if full extent of loss not contemplated

A

Parsons v Uttley Ingham

21
Q

Normal profit is a different type of loss to high profits resulting from a specially lucrative contract

A

Brown v KMR

22
Q

In complex cases, look at commercial context not simply reasonable contemplation

A

The Achilleas

23
Q

Main rule of quantification is position claimant would have been had contract been performed properly

A

Robinson v Harman

24
Q

Ruxley v Forsyth

A

Test of reasonableness - compensate for loss truly suffered

25
Q

Quantification

Cost of cure

A

Not reasonable if gives gratuitous benefit compared to non monetary loss suffered

26
Q

Quantification

Difference in value

A

(The difference in value may actually be nothing)

27
Q

Quantification

Loss of amenity/disappointment

A

If no difference in value and cost of cure is unreasonable, court may award for personal, subjective non-monetary loss

28
Q

Jarvis v Swan Tours

A

Damages for disappointment in a contract for pleasure were awarded
Will not get loss of amenity in commercial cases

29
Q

General rule: Claimant cannot recover damages for their injured feelings

A

Addis v Gramophone

opposed by Jarvis

30
Q

Claimant must take reasonable steps to mitigate loss

A

British Westinghouse

31
Q

Claimants damages can be reduced for contributory negligence

A

Law Reform (Contributory Negligence) Act