Chapter 15: Remedies
Question 1- Explain that the usual remedy for breach of contract is damages, and
that these may be liquidated (where a fixed amount is set by the parties)
or unliquidated (where the court decides the amount of the award) but
must not be a penalty clause (generally an amount included in the
contract which is oppressive). You are asked only to discuss
unliquidated damages in detail. - Explain that unliquidated damages may be substantial, nominal or
exemplary. - Explain the basis of assessment: expectation basis and reliance basis.
Discuss the ‘market rule’. - Discuss contributory negligence, which at present does not apply to
breach of contract – Basildon D C v J E Lesser (Properties) Ltd, but has
been suggested as a possible area of reform. - Consider mental distress and non-pecuniary loss and when there is no
precise measure of the amount lost – Jarvis v Swann Tours, Jackson v
Horizon Holidays Ltd, Chaplin v Hicks, Thake v Maurice. - Consider remoteness of damage: losses recoverable if reasonably
within the contemplation of the parties as a probable result of the
breach – Hadley v Baxendale; losses for particular losses which not
foreseeable not recoverable – Victoria Laundry v Newman. - Explain that reasonable steps should be taken to mitigate loss – British
Westinghouse Electric and Manufacturing Co Ltd v Underground
Electric Railways Co of London Ltd.
Question 2- Introduce damages as the usual remedy for breach of contract (see
Question 1 above), and compare this common law remedy with others
available, especially the equitable remedies. - Explain what is meant by repudiation (ending the contract) – see
material in Chapter 7 and 14. - Consider the equitable remedies which supplement common law ones:
rescission (see Chapter 11, as this is a remedy for misrepresentation);
specific performance (to enforce fulfilment of an obligation under a
contract); injunction (stops a person from acting in breach of contract). - Discuss whether these remedies provide a satisfactory solution for a
claimant.
Answers guide 321CHAR_Z01.QXD 14/9/07 10:01 Page 321