remedies(2)

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  • Created on: 09-01-15 07:30

Remedies

the purpose of the law of contract is to fulfil the reasonable expectation of the parties. However, the contract may only be partly performed, or not at all, by one party. The other party will no doubt be very disappointed and may ask the court to rectify the situation. What that party is asking for is called a remedy. The court cannot award whatever remedy is considers appropriate, but must be guided by the type of claim (e.g. is it breach or frustration?) and the range of remedies available in the circumstances.

There are various remedies available to the court, and they may be defined as being either legal (common law) or equitable remedies

Common law (legal)

repudiation(conditions) &/or damages(warranties)

legal right to these remedies

Equity (equitable)

specific performance, injunction,rescission,rectification

these remedies are at the courts discretion

Statue

Sale of Goods Act 1979(as amended)

reject goods – lose right to reject if accepted Clegg v Anderson

damages

4r's 2002 regulations that amended the 1979 Act(SGA); replace,repair

& reduced price and rescission are secondary remedies that are only used if cannot repair/replace and if choose these then buyer loses right to reject

Damages

monetary compensation to put the innocent party – so far as money can, in a position as if the contract had been satisfactorily completed

examples:

buying a car – seller sells car to someone else remedies: other side has to pay extra cost of buying a similar car from somewhere else (if any extra cost) & has to pay in you incur any other expenses such as public transport costs to get to work since you do not have a car now or if you need to hire a car, but these costs must be kept as low as possible like taking the bus if an option instead of a taxi

selling a car – buyer doesn't pay remedies: buyer has to pay difference in price if seller sells to someone else and cannot get same price originally expected

remoteness of damage

damages cannot be claimed for every loss, some losses are not foreseeable. The loss must not be too remote

Hadley v Baxendale 1854

a crankshaft in the claimant's mill broke so the claimant contracted for a carrier (the defendant) to take the shaft to the makers, who would then model a new shaft. The carrier breached the contract by taking longer than agreed to deliver he shaft, which meant the mill was out of business for longer than anticipated and the claimant lost profit over this extra period. The carrier had not been told the mill would be out of action until the new shaft arrived so the carrier was not liable for the loss of profits as he was entitled to assume that the mill has a spare shaft or could borrow one

usual consequences – D is always liable for usual consequences of his breach

unusual consequences – D only liable for unusual consequences of his breach if he…

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