lecture 8 Flashcards
Judicial remedies
- Legally enforceable
- Slow and expensive
Types of judicial remedies
- Declarator
- Interdict
- Specific implement (ad factum praestandum)
- Decree for payment
- Damages for loss arising from breach of contract
declarator
Declarator is an order of the Court ‘declaring’ what the law is.
interdict
Interdict is a preventative remedy.
when is interdict granted?
Granted if:
1. There is prima facie evidence of a legal wrong or threat by the person to be interdicted.
2. The balance of convenience favors granting the interdict.
specific implement
To compel performance you ask the court for an order for specific implement.
Retail Parks Investments Ltd v Royal Bank of Scotland Plc
what cannot be compelled?
you cannot compel someone to stay in a marriage or stay in a job.
Page One Records Ltd V Britton
actions for payment
Action for Payment of a sum of money due
damages
- Presumed that every breach of contract can give rise to a damages claim.
Webster v Cramond Iron Co
aim of damages
An award of damages aims to restore the innocent party to the position they would have been in had the breach not occurred.
what can the innocent party claim?
innocent party could only claim for monetary loss.
Addis v Gramophone Co Ltd
purpose of damages
The damages should compensate the victim of the breach for the loss of his contractual bargain.’ Golden Strait Corporation v Nippon Yusen Kubishka Kaisha
causation
The innocent party must prove that its loss was caused by the other party’s breach of contract.
remoteness
Remoteness limits the types and extent of losses recoverable under the ‘but for’ test. Balfour Beatty Construction (Scotland) Ltd v Scottish Power Plc
mitigation of loss
The innocent party must mitigate their loss with common sense, not extraordinary measures. The breaching party must prove the losses are unreasonable. (Connal & Co v Fisher Renwick & Co (1883) 10 R)
contract clauses
- Exemption clause: Limits liability for damages.
- Liquidated damages clause: Pre-determines damages in specified circumstances.
Remedies provided by the contract
Parties can include clauses in their contract to exclude, limit, or pre-estimate losses in case of breach, providing certainty.
penalty clause
A clause that simply seeks to punish the party in breach is known as a penalty clause. Cavendish Square holdings v Talal El Makdessi
