Remedies in Contract

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    • Contractually Stipulated Remedies
      • Liquidated damages contracted for by the parties
        • Cannot be a penalty clause - test is whether amount stated is a genuine pre-estimate of loss - terms in contract are not conclusive
    • Remedies under General Law
      • Self Help Remedies (Retention, Termination)
      • Judicial Remedies
        • As of Right: Damages, Enforcement of terms
        • Discretionary: Specific performance, Injunctions
          • Specific performance only granted where serves better justice than damages - Tito [1977]
          • Courts refuse SP if:  1. will cause D severe hardship, 2. Contract obtained unfairly 3. Claimant does not have clean hands 4. SP is impossible
            • Also SP is refused for contracts: 1. which involve personal service 2. require constant supervision 3. are too vague 4. are gratuitous
          • Injunctions
            • Two Types
              • Prohibitory - prohibits future behavior
              • Mandatory - requires D to undo past behaviour
    • Damages
      • Measure of Damages
        • Expectation Interest: the profit that C has lost as a result of D's breach.
          • Park B in Robinson v Harman 1848: putting the claimant into the position as if the contract was performed
          • Two way of calculating: 1. Cost of Cure and 2. Diminution in value
            • Cost of Cure cannot be claimed if it is unproportional cost to the benefit C would obtain
        • Reliance Interest
          • Being returned to the position C was in before the contract
            • These claims for wasted expenditure are only allowed in exceptional circumstances
            • Cannot be used to escape from a bad bargain - C&P Haulage 1983
            • Can claim for wasted expenditure from before contract signing - Television Ltd v Reed 1972
        • Restitution Damages
          • Recovering the profit D has nade as a result of the breach
            • Rarely allowed - AG v Blake 2001 - "loss of bargaining opportunity"
      • Park B in Robinson v Harman 1848: putting the claimant into the position as if the contract was performed
      • Causation
        • "But For" Test - Bank of Credit and Commerce v Ali (No 2) 2002
        • Unforeseeable act of third party breaks the chain - Weld-Blundell v Stephens 1920
          • Unreasonable conduct of Claimant may also break the chain - Quinn v Burch Bros [1966] (contributory negligence has no effect)
        • Claimants can recover losses which are: (Hadley v Baxendale 1854)
          • 1, Fairly and reasonably considered to have arises naturally from the breach
          • 2. Can be reasonably supposed to have been in both parties contemplation at time of contracting(THE LOSS MUST BE FORESEEABLE)
      • Mitigation
        • If C does not take reasonable steps to minimise losses he will not beable to claim for full damages - Kaines UK [1993]
          • But he can claim for losses caused by reasonable conduct - Banco de Portugal [1932]
        • If C increases loss he cannot claim for the increase - Baxendale [1874]
    • Non-Pecuniary Losses
      • Watts v Morrow [1991]
        • Generally D not liable for distress, frustration etc
          • Unless the object of the contract is to avoid such feelings or to provide pleasure
      • Four Exceptions to the General Riule
        • 1. NPL results from personal injury - Wren v Holt 1903
        • 2,NPL results from physical inconvenience or discomfort  - Bailey v Bullock [1950] (living in cramped conditions)
        • 3. Avoiding the NPL was object of the contract - Farley v Skinner (No 2) [2001]
        • 4. NPL results from injury to reputation - Bunning v Lyric Theatre [1894]


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