remedies

Question 1

What is the purpose of awarding damages?

Answer 1

compensate claimant for the damage, loss or injury they have suffered as a result of defendant’s breach, not to punish defendant.

Question 2

In which 3 ways are damages mainly calculated in?

Answer 2

1- expectation interest
2- reliance interest
3- restitution interest

Question 3

What is meant by expectation interest when calculating damages?

Answer 3

aims to put innocent party in the same position post-breach that they should have been in had the contract
been performed.

Question 4

What 3 mechanisms are used to calculate expectation interest?

Answer 4

1- diminution in value
2- cost of cure
3- loss of amenity

Question 5

What is the mechanism ‘cost of cure’ for calculating expectation interest?

Answer 5

represents the cost of substitute or remedial work required to put the claimant in the position they would have been in had the contract been properly performed.

Question 6

What is the mechanism ‘mininution in value’ for calculating expectation interest?

Answer 6

claimant’s expectation interest may be calculated by reference to difference in value between the performance received and that promised in contract.

Question 7

What is the mechanism ‘loss of amenity’ for calculating expectation interest?

Answer 7

Ruxley Electronics & Construction Ltd v Forsyth [1996]
consumer should have an available remedy where their loss is not economic in value, but nevertheless has a value to them.

!! will not be awarded in commercial situations!!

Question 8

What is ‘reliance interest’ when calculating damages?

Answer 8

the claimant to recover the expenses which have been incurred in preparing for, or in part performance of, the contract which have been rendered pointless by the breach.
- aims to put the claimant in the position they would have been in had they NEVER contracted.
Anglia Television Ltd v Reed [19721

Question 9

What is ‘restitution interest’ when calculating damages?

Answer 9

represents C’s interest in the restoration of benefits which defaulting party has acquired illegitimately at C’s expense.

Question 10

What is the key case for restitution interest & what did it establish?

Answer 10

AG v Blake 2001
restitution interest will only apply:
- in ‘exceptional’ cases
- where C has a legitimate interest in depriving D of their illegitimate profits; and
- other remedies would be inadequate

Question 11

What’s the definition of ‘efficient breach’ and how does it differ to the rules under restitution interest?

Answer 11

= one party breaches contract so they can enter a contract more profitable
- it’s not sufficiently ‘exceptional’ to justify restitutionary award.

Question 12

What are the different types of loss that may be awarded damages?

Answer 12

1- mental distress
2- loss of reputation
3- loss of chance

Question 13

What are the rules in relation to damages awarded for mental distress?

Answer 13

Not normally available as distress does not mean personal injury, just ordinary minor mental harm.
- Can be awarded where purpose / major part of contract was for pleasure, relaxation and peace of mind.

Question 14

What are the rules in relation to damages awarded for loss of chance?

Answer 14

Where claimant has real and substantial chance of gaining a particular benefit, which they lose as a result of D’s breach, they can recover their loss of chance.
- Damages will also be awarded for loss of chance if the lost chance is quantifiable in monetary terms

Question 15

What are the rules in relation to damages awarded for loss of reputation?

Answer 15

General rule is that damages will not be awarded

Question 16

Which 3 elements must Claimant show to recover damages?

Answer 16

1- causation
2- remoteness
3- mitigation

Question 17

What is meant by causation to recover damages?

Answer 17

claimant must establish a causal link between the defendant’s breach of contract and its loss in order to recover damages.
- assess legal and factual causation
Factual causation: if breach by D has, as a matter of fact, caused loss suffered by C

Legal causation: whether D should be held responsible for loss which has, as a matter of fact, been caused by its breach.

Question 18

What does causation require for damages to be recoverable?

Answer 18

• Breach must be effective or dominant cause of loss
• There must be a legal causation always
• There cannot be a novus actus (new intervening act) breaking the chain

Question 19

Why is the case of Hadley v Baxendale vital?

Answer 19

It established the foundation of law of remoteness in contract

Question 20

What is meant by ‘remoteness’ to recover damages?

Answer 20

Not all losses flowing from a breach of contract are recoverable.
- A line must be drawn somewhere dictating which loss is recoverable and which is not.

Question 21

What are the facts in the Hadley case?

Answer 21

A repair of a steam engine was delayed, costing mill owners losses that were unforeseeable to the repairmen.
Established:
- The damages which arise naturally according to the usual course of things from the breach, or those which the parties contemplated at the time they made the contract would probably be caused by a breach of contract.

Question 22

What 2 limbs were established in the case of Hadley?

Answer 22

1- arise naturally from the breach of contract
2- were in the reasonable contemplation of both parties at time of contracting

Question 23

What is meant by ‘mitigation’ to recover damages?

Answer 23

Where one party has suffered loss resulting from other party’s breach of contract, the injured party should take ‘reasonable steps’ to minimise the effect of the breach.
- so damages will be reduced

Question 24

What are the damages available under CRA 2015?

Answer 24

If goods don’t comply with the statutory implied terms, consumers have:
- short term right to reject
- right to repair or replacement
- right to a price reduction or final right to reject.

Question 25

What are the rules regarding CRA short term right to reject?

Answer 25

short term right to reject is available to consumer for 30 days running from the time
(i) that ownership/possession has passed
(ii) the goods have been delivered and
(iii) where the trader is required to install goods or to take other action to enable the consumer to use goods, the trader has notified the consumer that required steps have been taken.

Question 26

What are the rules regarding CRA right to repair or replacement?

Answer 26

available unless repair or replacement is either impossible or disproportionate

Question 27

What are the rules regarding CRA right to price reduction and final right to reject?

Answer 27

This remedy may only be exercised where:
(a) after one repair or one replacement, goods do not conform to contract; or
(b) consumer can require neither repair nor replacement of goods; or
(c) consumer has required trader to repair or replace the goods,
** 6 month time limit from pass of ownership for final right to reject

Question 28

What are the 2 remedies for non-conforming digital content?

Answer 28

• right to repair or replace (within reasonable time)
• right to price reduction (where right to repair / replace isn’t available)
• right to refund

Question 29

What are the remedies available for contracts of service?

Answer 29

• right to require repeat of performance (within reasonable time)
• right to price reduction (where 1 isn’t available)