Remedies

• The remedy available depends on the type of claim being made and the circumstance of the contractual parties, a remedy may be ordered for :

  • Breach of express terms ( actual or anticipatory )
  • Breach of implied terms - CRA breaches
  • Misrepresentation or economic duress

  Remedies for CRA are defined in the act but that doesn't prevent standard remedies being ordered alongside these.
• Damages - legal remedies

  • when deciding on an amount the court aim to place the claimant in the position they would have been in had the contract been properly performed.
  • A claimant may be awarding damages following - proof of misrepresentation pending on the type, actual breach of contract, anticipatory breach
  • Contractual damages can be put into a variety of categories - compensatory damages, speculative damages, nominal damages
• Compensatory damages - legal remedies

  These are damages paid to compensate for actual losses incurred by a claimant. Where a claimant is claiming for compensatory damages, they will not automatically be compensated for all their losses following the defendants actions. The courts apply two tests to a loss to determine if the C should be compensated by the defendant.

  1. causation - but for test
  2. remoteness of damage
• Compensatory damages - legal remedies

  Hadley v Baxendale - c is entitled to damages in respect of 2 types of loss - those that :

  1. can fairly & reasonably be considered as naturally occurring from breach
  2. Could reasonably, supposed to be in contemplation of both parties at the point of contract formation|
• Calculating Damages

  Once it has been established what losses a claimant should be compensated for , the court should determine what amount should be awarded
• 1 Mitigation of loss

  Claimant is always under a duty to mitigate their loss, taking reasonable steps to minimise the amount of damages they suffer if they're able to.

  If they don't do this, they might not be able to claim for any losses

  Pilkington v Wood = C must mitigate their loss and cannot claim for something that could've been avoided
• 2 Expectation loss

  Put claimant in position they have been in had contract had been performed

  Compensating for difference in value eg.cost of buying equivalent good & cost of the cure

  Can also include a calculation of lost profit or damage of fault good to other items in C's ownership
• 3. Reliance Loss

  If its not possible for court to calculate expected losses due to factors not anticipated, court may change ask to compensatory damages and aim to put the claimant in the position they were in before they entered
• Repudiation

  Termination of a contract - A claimant will be entitled to terminate a contract and treating it as immediately at an end where there has been a breach of condition, frustration, misrepresentation and economic duress
• Equitable damages

  • where damages are not an appropriate remedy due to the nature of the case
  • The judge can therefore decide on a range of alternative remedies as there is no automatic right and are at the discretion of the court
• Recession

  • available for fraudulent, misrepresentation, breach of condition and negligent. Mainly fraudulent
  • Seeks to unwind the contractual obligations, treat contract as uf it never had existed
  • May not be possible if : c has affirmed the contract, an innocent 3rd party has gained right over the property, not possible to restore goods to previous owners, items in question can't be located, item in question has been altered significantly, too much time has passed
• Specific performance

  This is an order for court to the defendant to perform the agreed contractual obligations, where they have refused to any the expected time of performance

  Not available when

  • damages would be adequate
  • causes any hardship to D
  • C no longer wishes the contract to be performed
  • Impossible to perform obligations