1. Not all loses which flow from a breach of contract are recoverable?????
2. Damages
2.1. Types of Damages
2.1.1. Court Assessed (unliquidated)
2.1.2. Agreed Damages Clause (liquidated)
2.1.2.1. Stipulates the sum that the other party must pay upon breach
2.1.2.1.1. advantages include:
2.1.2.2. BUT penalty clauses are unenforceable
2.1.2.2.1. injured party may bring an action for liquidated damages
2.1.2.2.2. Visit L2 notes for further info
2.1.2.2.3. depending on the way the clause is written, it may be deemed a penalty clause
2.2. Right to Damages
2.2.1. available as a right for every breach (compensatory)
2.2.1.1. Lord Diplock, Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
2.3. 'Measure' of damages *
2.3.1. Expectation (performance) interest - forwards looking
2.3.1.1. Primary measure of damages
2.3.1.1.1. 'The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.'
2.3.1.2. Calculating expectation interest
2.3.1.2.1. Difference in value
2.3.1.2.2. Cost of cure
2.3.1.2.3. Loss of amenity
2.3.1.3. The court will not award expectation damages if the are highly speculative
2.3.1.3.1. Australian case of McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
2.3.2. Reliance interest
2.3.2.1. When expectation interests are too speculative then rely on reliance interests
2.3.2.2. Pre-contractual position - if within reasonable contemplation of the parties
2.3.2.3. Claimant has an unfettered choice - between claiming fro profit or loss
2.3.2.3.1. 'It seems to me that a plaintiff in such a case as this has an election: he can either claim for his loss of profit; or for his wasted expenditure. But he must elect between them. He cannot claim both.'
2.3.2.4. cannot be used to escape a 'bad bargain'
2.3.2.4.1. C&P Haulage v Middleton [1983] 3 ALL ER 94
2.3.2.5. It is for C to prove they would have not have been able to recover expenditure if the contract was properly performed
2.3.2.5.1. they would get noting out of it
2.3.2.5.2. C&P Haulage v Middleton [1983] 3 ALL ER 94
2.3.2.5.3. ...unless D's breach makes it impossible for C to establish this
2.3.3. Restitutionary Interest
2.3.4. Consequential loss
2.3.4.1. Losses that are an inevitable consequence from the breach
2.3.4.1.1. H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd (1978) QB 791
2.4. Non-pecuniary loss*
2.4.1. definition - damages which have no discernible, quantifiable monetary amount attached to them
2.4.1.1. -> emotions and distress
2.4.2. Mental distress - generally cannot recover damages
2.4.2.1. Addis v Gramophone Co Ltd [1909] AC 488
2.4.2.2. A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, found on the assumption that such reactions are not foreseeable, which they surely are or may be, but on consideration of policy'
2.4.2.2.1. Bingham LJ in Watts v Morrow [1991] 1 WLR 1421
2.4.2.3. Exceptions
2.4.2.3.1. Where the objective of the contract is to provide pleasure, relaxation, peace of mind or freedom from molestation. damages will be awarded if such is not provided
2.4.2.3.2. for physical inconvenience and discomfort cause by the breach and mental suffering directly related to that inconvenience and discomfort
2.5. Causation
2.5.1. The breach must be a dominant or effective cause of the loss
2.5.1.1. Galoo Ltd v Bright Grahame Murray [2994
2.5.2. Intervening acts
2.5.2.1. Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196; Lambert v lewis [1982] AC 255
2.6. Remoteness*
2.6.1. Traditional approach
2.6.1.1. Test of reasonable contemplation
2.6.1.1.1. 'Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as many (1) fairly and reasonably be considered either arising naturally, ie, according to the usual course of things, from such breach of contract itself, or (2) such as many reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it'
2.6.1.1.2. 2 limbs of this test, which comes from Hadley v Baxendale
2.6.1.1.3. This followed further expansion in this test - reasonable foreseeability? Degree of probability?
2.6.1.1.4. Narrower test of remoteness than tort (reasonable foreseeability) - greater degree probability required in contract - 'not unlikely', 'serious possibility', 'real danger'
2.6.1.1.5. the type of loss needs to be foreseeable, not the extent
2.6.2. Lord Hoffmann later proposed a new test, stating that the test of foreseeability was 'too crude'
2.6.2.1. does not eliminate Hadley v Bacendale approach - just used in certain situations
2.6.2.2. 'New test' - Test of assumption of responsibility
2.6.2.2.1. Transfield Shipping Inc v Mercator Shipping Inc, The Achilleas [2008] UKHL 48
2.6.2.3. This is not generally a new approach for remoteness - it is only applicable in cases that are 'unusual' like The Achilleas case
2.6.2.3.1. "The orthodox approach remains the general test of remoteness applicable in the great majority of cases. However, there may be "unusual" cases, such as The Achilleas itself, in which the context, surrounding circumstances or general understanding in the relevant market make it necessary specifically to consider whether there has been an assumption of responsibility”
2.7. Reduction of Damages
2.7.1. Failure to mitigate
2.7.1.1. failure to take reasonable steps to reduce/ mitigate losses - Injured parties should take such steps
2.7.1.1.1. British Westinghouse Electrics and Manufacturing Co v Underground Electrics Rail Co [1912] AC 673
2.7.1.1.2. Can include accepting another contract by party in breach
2.7.1.1.3. No requirement to embark on 'a complicated and difficult piece of legislation'
2.7.1.2. Reasonable expenditure (spending) can b recovered
2.7.1.2.1. Banco de Portugal v Waterlow & Sons [1932] AC 452
2.7.1.3. This does not prevent a party which is affirming a contract from going to the expense of performing their side of the bargain
2.7.1.3.1. White & Carter v McGregor [1961] 3 All ER 1178
2.7.2. Contributory negligence
2.7.2.1. Rarely occurs/ unlikely
2.7.2.2. Only applies where D's liability in contract is the same as his liability in negligence (negligent breach) which arises independently of the contract
2.7.2.2.1. Forsikringsaktieselskapet Vest v Butcher [1986] 2 All ER 488
2.7.2.2.2. when there is a liability arising in tort under the same facts
3. Restitution
3.1. Situations in which D has been enriched at the C's expence
3.1.1. tf unjust that D pertains that benefit
3.1.1.1. iow: making money from breach
3.1.2. not compensation for loss (Damage
3.1.3. Types of restitution
3.1.3.1. Restitution of benefits conferred
3.1.3.1.1. usually: occurs when a contract has been terminate
3.1.3.1.2. there must be total failure of consideration
3.1.3.1.3. Non-monetary benefits conferred
3.1.3.1.4. particularly useful when over payment is present
3.1.3.2. Enrichment by wrongdoing (account of profits and loss of bargain)
3.1.3.2.1. broke contract for monetary or other gain through another form/ contract etc
3.1.3.2.2. Account of profits
3.1.3.2.3. General position: Damages for breach of contract cannot be measured by D's gains or savings
3.1.3.2.4. Two exceptions:
4. Specific Performance
4.1. An order from the court to which requires the breaching party to perform their primary obligations
4.1.1. an equitable remedy
4.1.2. when damages are inadequate
4.1.2.1. Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 All 954
4.1.2.2. s52 SGA 1979
4.1.2.3. s19 CRA 2015
4.1.2.4. Beswick v Beswick [1968] AC 58
4.2. Restrictions
4.2.1. Not generally available where:
4.2.1.1. Causes severe hardship to D
4.2.1.2. Contract is unfair to D
4.2.1.3. C does not deserve the remedy
4.2.1.4. C taking advantage of a mistake by D
4.2.1.5. Performance is impossible
4.2.1.6. contract is too vague
4.2.2. Contract for personal service
4.2.2.1. generally: courts will not order specific performance of a contract requiring personal services
4.2.2.1.1. s236 Trade Union and Labour Relations (Consolidation) Act 1952
4.2.2.1.2. Esxeption - cases agasint the employer
4.2.2.2. Injunctions to enforce a negative term?
4.2.2.2.1. Not permitted if the effect would be to compel specific performance
4.2.2.2.2. BUT -
4.2.3. need for supervision
5. Termination/ Affirmation
5.1. Relevant when it inst just a simple transaction contract. but there is an ongoing exchange (long term contract)
5.1.1. Wrongful termination in itself is a breach
5.2. when a contract can be terminated - following breach
5.2.1. Renunciation (Express and implied)
5.2.2. breach of a term
5.2.2.1. condition -> classification of terms
5.2.2.2. serious breach of innominate term
5.3. what happens when termination option arises
5.3.1. right of election
5.3.1.1. termination
5.3.1.2. affirmation
5.4. how a contract can come to an end
5.4.1. by Agreement
5.4.1.1. Must be supported by consideration
5.4.1.1.1. unless in the form of a deed, the operation of estoppel or waiver
5.4.1.2. “It is competent for both parties to an executory contract by mutual agreement without any satisfaction to discharge the obligation of that contract. But an executed contract cannot be discharged except by release under seal, or by performance of the obligation, as by payment, where the obligation is to be performed be payment.”
5.4.1.2.1. Foster v Dawber [1851] 6 Exch 839, per Parke B
5.4.1.3. can be difficult if it is onesided
5.4.1.4. Conditions precedent
5.4.1.4.1. Pym v Campbell [1865] 6 E & B 370
5.4.1.5. Conditions subsequent
5.4.1.5.1. Brown v Knowsley BC [1986]
5.4.2. by performance
5.4.2.1. Order of performance
5.4.2.1.1. dependent obligations/ independent obligations
5.4.2.2. Entire or divisible contracts
5.4.2.2.1. Entire obligations rule
5.4.2.2.2. Divisible obligations
5.4.2.2.3. Acceptance of partial performance
5.4.2.2.4. Substantial performance
5.4.3. by breach
5.4.3.1. “A breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing.”
5.4.3.1.1. Treitel, 2011: 17-049
5.4.3.1.2. What could a lawful excuse be?
5.4.3.2. The routes to termination following breach
5.4.3.2.1. L3 Notes - Diagram
5.4.3.3. Renunciation
5.4.3.3.1. definitions
5.4.3.3.2. Have to look at what they are saying they are not going to perform and for how long
5.4.3.4. Breach of a term
5.4.3.4.1. Breach of a condition
5.4.3.4.2. Serious breach of an innominate term
5.4.3.5. the Right of Election
5.4.3.5.1. Decro-Wall International SA v Practitioners in Marketing Ltd (1971)
5.4.3.5.2. Gives rise to two options
5.4.3.5.3. A period of time is given to decide. During this period they also are entitled to maintain the contract
5.4.3.5.4. once a decision is made,
5.4.3.6. Anticipatory breach
5.4.3.6.1. This is done by words or conduct indicating refusal or inability to perform before performance is due
5.4.3.6.2. "So far as concerns repudiatory conduct, the legal test is simply stated… It is whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contact.”
5.4.3.6.3. In these situations, the anticipated breach must be of a contractual obligation that gives rise to the right of election
5.4.3.7. Affirmation
5.4.3.7.1. Unequivocal intention (express or implied)
5.4.3.7.2. Irrevocable
5.4.3.7.3. Risk of supervening event
5.4.3.7.4. Case that may be of relevance
5.4.3.7.5. “It might be, but it never has been, the law that a person is only entitled to enforce his contractual rights in a reasonable way and that a court will not support an attempt to enforce them in an unreasonable way. One reason why that is not the law is no doubt because it was thought that it would create too much uncertainty to require the Court to decide whether it is reasonable or equitable to allow a party to enforce his full rights under a contract.”
5.4.4. Impossibility
5.4.4.1. by Frustration
5.4.4.1.1. Definition
5.4.4.1.2. Grounds for frustration
5.4.4.1.3. Limitations to frustration
5.4.4.1.4. Effects of Frustration
5.4.4.2. Mistake
5.4.4.2.1. Definitions
5.4.4.2.2. Agreement mistake
5.4.4.2.3. Common Mistake
6. General Process for remedies
6.1. Breach
6.1.1. Express terms
6.1.2. Implied terms
6.1.2.1. Sale of Goods Act (SGA) 1979
6.1.2.2. Sale of Goods and Services Act 1982
6.1.2.3. Consumer Rights Act 2014