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Law Notes Contract Law Notes

Other Remedies Notes

Updated Other Remedies Notes

Contract Law Notes

Contract Law

Approximately 1511 pages

From the AuthorContract law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB contract law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Contract Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students ...

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Other Remedies

Damages are the primary remedy for breach – The following remedies are only given at the court’s discretion.

The Agreed Sum

  • This is the most common claim for breach of contract

    • It is a claim for a specific agreed price specified in the contract

    • Advantages for C are:

      • Availability of summary judgement

      • C can then also seek damages if they wish

      • Avoids restrictions on damage claims (no need to show loss, not remote, duty to mitigate)

      • Avoidance of restrictions on other specific remedies

    • Advantages for D are:

      • C must have given substantial performance before this can be triggered

      • D can set off any claims for the agreed sum with what he is owed if not unjust.

  • Chen Wishart:

    • This is rarely restricted as Courts are keen to show they won’t interfere with freedom to bargain

      • However, in doing so Courts over protect C’s performance interest in that they don’t deduct anything for failure to mitigate and lack of waste avoidance.


Specific Performance

  • Beswick v Beswick [1968]:

    • Lord Hodson:

      • Specific Performance should be capable of being awarded when damages for breach are a clearly inadequate remedy

  • When is specific performance available?

    • Requirements for C

      • C must show that just receiving damages would be an inadequate remedy

        • Damages are recognised as not always being adequate :

          • When goods are physically unique

          • When land is under contract, even if C has no unique interest in the piece of land

          • Beswick v Beswick [1960]:

            • No other substantial remedy available due to legal blackhole or lack of “loss” necessary for substantial damages.

          • Sky Petroleum Ltd v VIP Petroleum Ltd [1974]:

            • When C will be unable reasonably to find alternative suppliers for similar goods/services

          • Sale of Goods Act 1979 s.45A-E

            • Seller must repair or replace goods unless:

              • Impossible

              • Remedy sought is disproportionate

              • 48C: Price reduction/rescission of contract is more appropriate

      • C must have clean hands

        • If C wants equity, he needs to be equitable himself:

          • Webster v Cecil

            • Can’t have taken advantage of D’s mistake when making contract

          • Chappell v Times Newspapers

            • Want specific performance but unwilling to fill own obligations = not going to get specific performance

          • C has acted in an unfair or underhanded way

      • C must not unduly delay in claiming for specific performance

        • Although if just, C can still recover despite substantial delay.

    • Contract may not be granted specific performance though if...

      • The contract involves the carrying on of personal service

        • CH Giles & Co Ltd v Morris

          • Megarry J:

            • Some contracts of personal service are unenforceable b/c their adequate performance will be subjective and nearly impossible to adjudicate on

              • However, not all contracts are such – element of personal or continuous service, w/o more, will not bar specific performance.

      • This will lead to Impossibility and Hardship on the part of D

        • Co-operative Insurance v Argyll Stores [1998]: C leased a shopping centre unit to D for 35 years to build a supermarket. With 19 years to go on the lease, D closed the supermarket. C attempted to get D to stick around with re-negotiation, but D made no reply and merely closed the supermarket, taking out all the fixtures and fittings.

          • Lord Hoffmann:

            • If D made to perform personal service contract such as carry on business

              • C can become unjustly enriched at D’s expense

            • Purpose of contract is not to punish wrongdoer but to compensate loss

              • And what D suffers could be far worse than damage C suffers from breach in first place

      • What should be performed is uncertain

        • D can’t be compelled to perform where it is uncertain exactly what he has to perform from the contract

        • Chen Wishart: increases the chance of further litigation.

      • Enforcing the contract would require “constant supervision” of D by the court

        • Co-operative Insurance v Argyll Stores [1998]:

          • Lord Hoffmann:

            • With requiring people to do an activity for indeterminate time

              • Court will continue to have to check whether activity is being carried out

              • Means litigation becomes very expensive – contempt of court proceedings very heavy handed.

                • Damages on other hand simply give some immediate closure.

            • Specific Performance often only suitable when court requires a result to be achieved (e.g. pay money)

              • All the court has to do is to make an enquiry whether this has been done or not


Injunctions

  • Mandatory Injunctions

    • These compel D to undo the effects of his breach of contract

      • But will only be awarded where D has “trodden roughshod over C’s rights”

  • Prohibitive Injunctions

    • When an injunction “not to do something” will be ordered

      • Lumely v Wagner [1852]: W contracted with X to sing in theatre for three months. W a diva, so threw a strop and refused to sing. X attempted to get court to order specific performance.

        • Lord Chancellor:

          • Can’t force W to sing so can’t grant specific performance.

            • But can force her not to perform at any other theatre

          • This is essentially an injunction

            • Her contract states she must perform for three months at X’s theatre

              • Therefore, not unjust to issue injunction making her do what she herself has bound herself to do – not to perform elsewhere.

          • Burrows: time length – only 2 months to go – probably a factor in decision that not unjust.

      • Arguments for granting:

        • Interferes less...

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