Remedies Flashcards Preview

Funtract > Remedies > Flashcards

Flashcards in Remedies Deck (18):


Breach of contract entitles injured party to damages.
Purpose - to compensate for loss.


How is loss proved?

Not presumed by BoC, but on facts. Not limited to financial loss. Where no loss, Cl receives nominal damages (£2.)


Standard of proof for loss?

Civil - balance of probs, that loss sustained.

Court discretion to ££.


Expectation loss/Performance loss?

Loss of bargain - the benefit Cl would receive if contract performed with terms rather than breached.
I.e. net profit Cl would have made. But if a bad bargain, Cl receives nominal damages for breach.

If there is a subjective non fiscal benefit Cl recovers damages nonetheless.


What else can Cl recover for?

Physical loss
Distress (provided that major part of contract was to give pleasure, relaxation, peace of mind)
Loss of chance of gain, provided chance was real.


Recover for fixing defective performance?

Can try, only awarded provided isn't disproportionate to the resulting benefit.


Reliance Loss

Expenditure incurred by Cl in performing contract wasted as a result of the breach.

Where difficult on evidence to show that def's performance would have resulted in financial benefit to Cl, reliance loss is better.


Rule against double recovery?

Claiming same loss twice -expectation and reliance get mixed up. Cl then sues for what would have gained, and what it would have cost him to gain it. This goes beyond compensation.


Causation in awarding damages?

Loss must be caused by breach of contract. Rules of Remoteness - loss must have arisen from breach in natural course of events, or must have been foreseeable to def at time the contract was entered into.


Avoidable loss if Cl had been reasonable?

Not deemed in law to have been caused by Def's breach. Duty to mitigate - though unenforceable.


Contributory neg?

If def's breach of contract caused Cl's loss, loss is fully compensated even if Cl contributed to loss. Cl bargained for due performance, reduction in damages would interfere with contractual allocation of risk. Tension with "duty to mitigate".



Can terminate for breach, withhold future performance and forego def's future performance. Only where a condition (not warranty) is breached. May be combined with action for damages to necessary extent to compensate Cl fully. Court not necessary to terminate.



Undoing the contract - restores parties to position they were in before entered into it. Differs from termination, operates retro upon the contract as well as prospectively - i.e. by misrep.


Termination in Sales of Goods cases:

Contracts for SG can be terminated for breach of condition. Termination may resemble rescission.
Where faulty goods are supplied in breach of condition, termination of contract may involve returning goods, recovering price paid for them.


Specific Performance

Court orders def to perform contract. Discretionary remedy, only used when damages isn't justiciable.
i.e. sale of land (land is unique) or any unique goods.

Contracts for personal services not specifically performable, courts don't order parties to maintain personal relations.


Specific performance - power to do so?

Equitable J - limited by considerations peculiar to equity - fairness and practicality.

But damages is a claim in common law, granted as a right once cause of action and loss are proved.



Prohibitory injunction - an order enforcing a negative undertaking in a contract. Restrains a def from acting in BoC by doing what he promised not to do.

Personal services different - breach not directly restrained by grant of injunction.

Mandatory injunction orders def to undo do what did in breach of contract - drastic, only where nothing less will do justice.


Restitutionary remedies

Beyond contract - allow justice where contract fails to award rights (therefore a remedy) or been discharged, or no contract ever into existence.

Remedy may be available if one party would be unjustly enriched at the expense of the other. Arise like contractual remedies, ref to presumed intentions of parties (quasi-contract) but not convincing.