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Exam cards - Contract > Remedies > Flashcards

Flashcards in Remedies Deck (48):
1

Poussard v Spiers

A term is a condition if it goes to the root of the matter. This allows the claimant to withhold the contract price

2

Bettini v Gye

A term is a warranty if it does not change the contract in substance

3

Hong Kong Fir v Kawasaki

An innominate term is where the breach of a term is judged to be a condition or warranty dependent on the outcome. If the contract deprives the claimant of the full benefit of the contract then it is a condition.

4

Schuler v Wickman

The importance placed upon the term will affect whether it is a condition or warranty

5

I.C.U.R

Incorporation - Term incorporated into contract and aware of term
Construction - Liquidated or penalty
UCTA 1977 - Exclusion clause
UTCCR 1999 - Consumer contracts only (Business to consumer)

6

Dunlop v New Garage; Test for valid liquidated damages - Lord Dunedin

1. Not dependent on how parties label terms
2. Designed to scare the contractor into compliance (in terrorem)
3. Dependent on the knowledge at the time of contracting
4. If sum is extravagantly greater than possible loss then it is a penalty
5. Greater sum payable for late payment
6. Sum at a certain level regardless of nature of the breach

7

McAlpine v Tilebox

Pre-estimate of loss does not have to exactly co-incide with actual loss, as long as it was a genuine pre-estimate

8

Parker v SE

For term to be incorporated the parties must be aware of the term.

9

L'Estrange v Graucob

Incorporation by signature

10

Robinson v Harman

Expectation interest - Puts the parties in the position they would have been in had the contract been properly performed

11

Ruxley v Forsyth

Establishes the 3 levels of restitution;
Difference in value
Cost of cure
Loss of amenity
* these need only be considered if there would be a difference between them

12

Anglia TV v Reed

Reliance interest - This puts the parties in the position as if they had not contracted.
Anglia TV v Reed states that there is an unfettered choice between a reliance and expectation interest
Can claim for pre-contractual losses

13

Regus v Epcot

Loss of amenity rarely awarded in commercial contracts

14

McGlinn v Waltham Contractors

Cannot create the loss you are claiming for

15

McRae v Common Wealth Disposals

Court will not award expectation damages which are too speculative

16

C + P Haulage v Middleton

Reliance claim not possible if losses would possibly not be recovered anyway.

17

AG v Blake

Restitution interest - This is where profits can be claimed even where there is no loss
Criteria;
Exceptional circumstances
Legitimate interest in the deprivation of profit
Other remedies inadequate

18

Sine Nomine

Where it is an efficient breach; compensatory damages would suffice and there is no legitimate interest in the profits, then there is no claim for restitution

19

Esso v Niad

High watermark case, restitution allowed even though damages not exceptional

20

WWF v WWF

Affirms that restitution only possible with exceptional damages

21

Addis v Gramophone

General rule that there is no remedy for mental distress

22

Jarvis v Swans

Mental distress can be claimed if the contract is purely for enjoyment

23

Malik v BCCI

Can claim for loss of reputation

24

Chaplin v Hicks

A claim can be made for loss of chance

25

Galoo v Bright Graham Murray

- Causation found if the breach is the dominant and effective cause of loss
- Court takes a common sense approach to causation

26

Lambert v Lewis

Breach not dominant and effective cause where claimant had knowledge of breach and continued into contract

27

Hadley v Baxendale

Test for remoteness in relation to a contractual remedy;
1. If the loss arises 'in the usual course of things', then there is judged to be imputed knowledge of the loss and it is claimable
2. If an abnormal loss is 'in contemplation of both parties', then the loss is claimable as the parties are judged to have specific knowledge of the abnormal loss

28

Jackson v Royal Bank

Remoteness test is based on knowledge at the time of contracting

29

Victoria Laundry v Newman

Court of appeal interpretation of the remoteness test. Defendant had knowledge of the loss from breach, and the loss was not abnormal so imputed knowledge would suffice anyway. No knowledge of abnormal loss, so not claimable

30

The Heron II

HoL interpretation of remoteness test. Claim for lost profit from late delivery was allowed as though there was not actual knowledge it was judged that the loss was not 'unlikely to occur' so this constituted imputed knowledge for the purpose of the Hadley v Baxendale test (1st limb)

31

Balfour Beatty v Scottish Power

- Loss was not 'in usual course of things' therefore required that the loss be 'in contemplation of both parties', which it was not as scottish power had no knowledge of particular specific loss which was possible
- For the loss to be 'in contemplation' it must have had a ''very substantial degree of probability of occurring'.

32

The Achilleas

Unexpected drop in charter rates meant that loss incurred. Not 'in normal course of events' so imputed knowledge not sufficient. No actual knowledge, which was necessary as loss judged to be unexpected so abnormal loss.

33

Mitigation

No obligation to mitigate but cannot claim the losses which you do not try and mitigate

34

British Westinghouse v Underground

Only required to take reasonable steps to mitigate
If loss completely mitigate then there is no claim

35

Pilkington v Wood

Not expected to litigate to mitigate. (e.g. liquidated damages clause which you are claiming as loss, no need to challenge this, as no obligation to litigate)

36

Payzu v Saunders

If more expensive to contract elsewhere then obligated to accept breach

37

Banco de Portugal v Waterlow

Do not have to mitigate perfectly

38

Vesta v Butcher

Contributory negligence only available where the breach of contract is also a tort (negligent)

39

What is the mnemonic for the structure of a remedies question?

I (Introduction)
Party (Parties and contract)
Tonight (Terms)
But (Breach - Condition/warranty)
Later (Liquidated damages?)
Can't (Compensation)
Ovulate (Other claims)
Lost (Limiting factors)
Consciousness (Conclusion)

40

Hayes v Dodds

No mental distress damages in a commercial contract

41

Farley v Skinner

- Widens mental distress damages to include a 'major object of the contract' as enjoyment

42

What measure of loss to apply?

- Unfettered choice
- Is there any reliance?
- Is the Expectatino greater than the reliance?
- Is the expectation too speculative (McRae v Commonwealth Disposals)

43

Nominal damages

Awarded where LOA would be awarded but cannot be as it is a commercial contract (Regus v Epcot)

44

Girozentrale v Country

The cause can still be the dominant and effective cause, even if it is not the only cause of even the most potent. Wide interpretation.

45

Sumpter v Hedges

Quantum Meruit awarded

46

Birse v Eastern Telegraph

- The cost of cure is the prima facie measure of compensation in construction works. However will not be awarded if disparity between that and diminution in value.

47

McGlinn v Waltham

If money were to be awarded and it would not be used to remedy defect then it will not be awarded as LOA will be awarded instead

48

Interfoto v Stiletto

Courts will strike out a penalty clause and impose a reasonable sum