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Contract remedies
Contract Ireland remedies
| Question | Answer |
|---|---|
| What is the purpose of damages as a remedy in contract law? | To restore parties to position they would be in if the contract had been PERFORMED. |
| What is the difference between damages in CONTRACT and damages in TORT? | Damages in tort are designed to restore parties to the position they were in BEFORE THE CONTRACT WAS BEGUN (not -had it been performed -as in contract). |
| What 4 matters must be addressed in dealing with damages in contract law? | 1) breach CAUSED the loss 2) Remoteness (DEGREE to which breach caused loss) 3) MEASURE must quantify loss 4) Did claimaint MITIGATE loss as is their duty? |
| CAUSATION: Under what Act is it specified that damages to a claimant will be reduced by the degree to which they have contributed to the breach which they seek compensation for? | Civil Liability Act 1961 s2. |
| Remoteness of damage: What case provides the main 2 part test for determining the degree of culpability (and liability for damages) of the defendant? | Hadley v. Baxendale (1854) 9 Exch. 341 |
| What 2 part test for remoteness does Hadley v. Baxendale (1854) provide? | 1) NORMAL LOSS -reasonably expected damages regardless of defendant's state of knowledge 2) SPECIAL DAMAGES - for damages defendant [objective -reasonable man] would have been aware of at time of act which arise from his decision to act. |
| Give an example of a case where special damages were not awarded because defendant could not have anticipated damage. | Waller v. Gt Western Railway (Ireland) Co.(1879) [horses had to be ridden Dublin - no train] Defendant no reasonably predict value down because of wrong feed en route. |
| What was the finding with regard to special damages in Kemp v. Intasun Holidays Ltd [1987] ? | [Child moved new hotel room due cancellation - asthma aggravated] 1) NORMAL LOSS for cancellation awarded 2) NOT SPECIAL DAMAGES as tour operator was not made aware of condition in advance. |
| MITIGATION OF LOSS: In common law what kind of losses is there a duty to mitigate? | Common law duty to mitigate ACTUAL LOSSES (not anticipated losses) |
| Can the defendant reduce damages claimed against them by showing that the plaintiff did not use the most advantageous method of reducing losses which they had proposed? | No: As long as plaintiff makes a reasonable attempt to mitigate loss the defendant cannot stipulate the method. Banco de Portugal v. Waterlow and Sons Ltd [1932]. |
| What are the 4 HEADS OF LOSS (measure of damages) which people would have gained from a contract had it been carried out? | Expectation loss, Reliance loss, Restitution loss, Consequential loss. |
| What is EXPECTATION LOSS? | Compensated for what would have made if contract performed. |
| Give an example of where a racehorse owner was awarded expectation loss for being prevented from entering a horse in a competition because of a contractual breach. | Hawkins v. Rogers (1951) Damages assessed on past performance of horse. |
| What is RELIANCE loss? | Losses due to costs and alterations caused by RELIANCE on the defendant. |
| Give an example of a case where damages for RELIANCE were awarded? | Anglia television v. Reed [1972] 1 QB 60 actor quit half way through movie – cost of making movie to date. |
| what is RESTITUTION loss? | restitution loss: claiming back money already paid (e.g. deposit). |
| What is CONSEQUENTIAL LOSS? | Losses indirectly caused by the actions of the defendant. |
| Give a case example of damages awarded for CONSEQUENTIAL LOSS. | Stoney v. Foley (1897) 3 ILT 165 sheep warranted as fit – disease – land blighted for five months – award for blighted land and sheep. |
| At what point in time are damages assessed? | At the time of the breach. |
| Does contract law allow PUNITIVE damages? | Generally no: (punitive damages allowed in tort) |
| Does contract law allow SPECULATIVE damages? | Yes. |
| What condition is put on the awarding of SPECULATIVE damages? | Speculative damages must be for CERTAIN LOSSES Grafton Court Ltd v. Wadson Sales (Unreported, High Court, 17February 1975) |
| What are SPECULATIVE damages? | ESTIMATED costs for losses that have not yet happened. |
| Damages for inconvennience and emotional distress are not generally available under contract - what is the one exception? | Contracts where ENTERTAINMENT and RECREATION are at the heart of the contract Jarvis v. Swan Tours [1973] 2 QB 233 food and entertainment on holiday not to expectation. |
| What is a LIQUIDATED DAMAGES clause? | Where it is contractually agreed in advance what the specified value or measure of loss will be in the event of a breach unliquidated damages -unspecified losses. |
| If a liquidated damages clause allows greater damage to be awarded than that which was ACTUALLY suffered - what is the consequence? | The clause is unenforceable - and treated as a penalty clause as a matter of construction Dunlop Pneumatic Tyre v. New Garage & Motor Co. [1915] |
| What is an acceleration clause? | Requirement to pay entire sum under credit arrangement if installments broken- enforceable as no involve extra payment above what agreed - just change TIME of payment Angelic Star v. Lloyds Rep 122. |
| Other than damages - name 6 remedies (equitable) which are available to a plaintiff for breach of contract. | 1) Recission 2) Rectification 3) Specific Performance 4) Injunction 5) Quantum Meruit 6) Restitution. |
| What is RESTITUTION? | Giving money back where the service was not received. |
| What is RECTIFICATION? | Court alters the terms of a contract to more accurately reflect what BOTH parties had intended at the time of contracting. |
| Give an example where an INJUNCTION was used to prevent a singer breaching her contract to go and sing elsewhere. | Lumney v. Wagner (1852) |
| What does QUANTUM MERUIT mean? | Quantum Meruit (“as much as deserved”) receive payment for work part done to proportion done. |
| What type of contract is SPECIFIC PERFORMANCE usually awarded for? | Land contracts. NOT usual in contracts for services or employment contracts (slavery abolished & courts avoid injunctions that require court supervision). |
| What is RECISSION? | Recission: setting a contract aside. |
| What is the aim of RECISSION? | To restore the parties to the position they were in BEFORE the contract began (Equitable remedy - not contractual remedy) |
| What is the legal effect of RECISSION? | Recission: the CONTRACT ENDS. |
| What 4 circumstances usually warrant a RECISSION remedy? | 1) Misrepresentation 2) Mistake 3) Duress 4) Undue Influence [i.e. mostly IMPROPER MOTIVES]. |
| What are the 5 situations where RECISSION is not available? | 1) Contract ended 2) Cannot restore parties to original position 3) 3rd Party affected 4) Delay of plaintiff [laces] 5) Acquiesence - plaintiff continued contract after knowing of breach. |
| At whose discretion are the 6 equitable remedies of Injunction, recission, rectification, specific performance, quantum meruit and restitution? | Equitable remedies are not contractual or a matter of construction they are at the discretion of the COURT. |
Created by:
Solomon