Termination of Contract + Remedies

Question 1

if a contract is breached, what does the injured party have an automatic right to do?

Answer 1

claim for damages for breach of contract.

Question 2

if a condition of the contract is breached, if there is a repudiatory breach or if there is a fundamental breach, what can happen?

Answer 2

the injured party has the right to get out of the contract, if they want to

Question 3

the doctrine of frustration deals with what?

Answer 3

-cases in which the parties can no longer perform their contractual obligations due to circumstances beyond the control of either party.
-where its performance would be illegal or radically different from the obligations undertaken at the time the contract was made

Question 4

what are the three types of frustrating circumstances?

Answer 4

-legal impossibility
-physical impossibility
- impossibility of purpose

Question 5

when does legal impossibility occur?

Answer 5

where a contract that was perfectly legal when it was made, later becomes illegal (e.g change of law)

Question 6

performance of the contract may be physically impossible for various reasons:

Answer 6

a) death or incapacity in personal service contracts
(b) destruction of the subject matter of the contract
(c) failure of supplies
(d) delay and hardship

Question 7

what is meant by impossibility of purpose?

Answer 7

A contract which may have been made for a specific purpose, which no longer exists

Question 8

what are remedies to breaches of contracts? (6)

Answer 8

-damages
-injunctions
-specific performance
-rectification
-recission
-restitutionary remedies

Question 9

what are damages?

Answer 9

the payment of a sum of money to compensate for any losses suffered.

Question 10

what are punitive/ exemplary damages?

Answer 10

where damages do more than compensate plaintiff for his loss – they also punish the defendant

Question 11

what are nominal damages?

Answer 11

small award acknowledging that the defendant was in the wrong, but which recognises that the plaintiff did not suffer as a result

Question 12

how are equitable remedies awarded?

Answer 12

at the discretion of the court

Question 13

in deciding whether to award an equitable remedy, the courts will use what?

Answer 13

the maxims of equity

Question 14

what are the maxims of equity?

Answer 14

sayings that help the court to exercise its discretion

Question 15

what is an injunction?

Answer 15

an order of the court requiring a person to stop doing (prohibitory injunction) or to do (mandatory injunction), a particular act. The

Question 16

what are the types of injunctions?

Answer 16

-perpetual injunction
-interlocutory injunction
-interim injunction

Question 17

what is a perpetual injunction?

Answer 17

granted after full trial

Question 18

what is an interlocutory injunction?

Answer 18

a temporary injunction which is issued in order ‘to preserve the status quo’ until the trial takes place. Four days notice is given to the other side. The injunction remains in place until the trial.

Question 19

what is an interim injunction?

Answer 19

This is granted for a limited period, after an ex parte (one-sided) application. It has effect only until a further order (eg an interlocutory injunction) is granted.

Question 20

an applicant for an interlocutory injunction must give what?

Answer 20

undertaking as to damages

Question 21

before the court will grant an interlocutory injunction the following must be satisfied:

Answer 21

i. The plaintiff must make out a stateable legal case
ii. The balance of convenience must be in favour of the granting of the injunction

Question 22

Two factors must be taken into account in relation to the balance of
convenience:

Answer 22

a. Whether damages are an adequate remedy and
b. Whether the plaintiff’s undertaking as to damages will adequately compensate the defendant for any damage done to them as a result of the granting of the injunction

Question 23

what is meant by specific perfomance?

Answer 23

an order of the court requiring a person to carry out their obligations under a contract.

Question 24

what is rescission?

Answer 24

a contractual remedy that allows someone to get out of a defective contract

Question 25

what is the purpose of rescission?

Answer 25

put the parties in the position they would have been in if the contract had never been made

Question 26

what is rectification?

Answer 26

contractual remedy used in relation to written contracts where it can be proved that the written document does not reflect what the parties actually agreed.

Question 27

what is restitution?

Answer 27

the area of law that deals with the reversal of unjust enrichment

Question 28

what are the two remedies for restitution?

Answer 28

-action for money had and received
-quantum meruit