scholarly journals MAKING SENSE OF MESNE PROFITS: REMEDIES

2021 ◽  
pp. 1-29
Author(s):  
Charles Mitchell ◽  
Luke Rostill
Keyword(s):  
Present Article ◽  
Breach Of Contract ◽  
Unjust Enrichment ◽  
Making Sense ◽  
Compensatory Damages

Abstract This is the second of two articles about cases in which awards of “mesne profits” have been made against defendants who have occupied claimants’ land. The first article argues that the facts of cases where such awards have been made variously support claims in tort, contract or unjust enrichment and that practical consequences can flow from categorising the cases in one way or another. One is that different rules affect the assessment of remedies awarded to claimants depending on the claim that was made and the remedy that was awarded. The present article develops this point by examining the assessment principles governing “mesne profits” awards, according to whether these are classified as compensatory damages in tort, restitutionary damages in tort, orders that a defendant perform a contractual duty to pay a debt, compensatory damages for breach of contract, or orders that a defendant make restitution of an unjust enrichment.

11. Remedies Part III: Non-compensatory Remedies

2021 ◽  
pp. 340-376
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Breach Of Contract ◽  
Unjust Enrichment ◽  
Specific Performance ◽  
The Common ◽  
Compensatory Damages

This chapter identifies some alternative, exceptional remedies that could be available to an innocent party following a breach of contract. Generally, they can only be used when an award of compensatory damages would for some reason not be adequate or is unavailable. The chapter starts with specific performance and injunctions. Both remedies were developed in equity rather than the common law. This means that their application is largely discretionary and so the chapter looks at the factors that could be relevant to the exercise of that discretion. It then turns briefly to the remedy of restitution for unjust enrichment. While this is a different area of law, it can provide a remedy where there was thought to have been a contract but it turns out there was not one. In certain circumstances, it could also provide a remedy following a breach. A basic grasp of this area will also help to understand the very exceptional ‘restitution for a wrong’ remedy. Finally, the chapter considers the remedy of negotiating damages as well as agreed damages clauses.

Form of compensatory damages, date for assessment, taxation

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
General Rule ◽  
Breach Of Contract ◽  
Lump Sum ◽  
Future Loss ◽  
Compensatory Damages ◽  
Assault And Battery

The general rule can be expressed as follows: a court must assess in a lump sum all past, present, and future loss resulting from the particular tort or breach of contract being sued for, because no damages can be later given for a cause of action on which judgment has already been given. The classic authority is Fitter v Veal, where the claimant had been awarded £11 damages against the defendant in an action for assault and battery. His injuries proved to be more serious than at first thought and he had to undergo an operation on his skull. It was held that he could not recover for this further loss in a new action.

Part IV Termination and Affirmation, 11 Restitutionary Relief

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Breach Of Contract ◽  
Unjust Enrichment ◽  
The Law

This chapter assesses several inter-connected instances where the non-breaching party in a contract terminated for the other's breach might seek restitutionary relief under the law of unjust enrichment as opposed to damages for breach of contract. For claims where the claimant seeks to recover benefits transferred under a contract now terminated, it is still conventional to distinguish between claims for restitution of money benefits and claims for non-money benefits. The chapter also differentiates restitution for breach of contract from restitution following breach of contract. It then turns to situations where the party that committed the breach is seeking restitution of money and non-money benefits transferred under the contract. The first question to be addressed is why that breach does not of itself bar any restitutionary claim.

Part VIII Remedies For Default, 28 Damages

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Breach Of Contract ◽  
Compensatory Damages ◽  
Compensatory Measure

The rules governing compensatory damages for breach of contract are complicated and at times difficult to apply precisely. This chapter considers those doctrines in detail: including the different `measures’ of compensation, and the defences of causation, remoteness, mitigation, etc. The paradigm measure of compensatory damages for breach of contract is the so-called ‘expectation’ or ‘loss of bargain’ species. Here the aim is to place the innocent party in the position in which he would have been if the contract had been properly performed. That aim cane be achieved notably by recovering the profits he had expected to gain under the contract. But where loss of profit cannot be easily proved, a ‘fall-back’ compensatory measure is reliance loss damages. These restore the innocent party monetarily to the position he enjoyed before the contract was breached, thus enabling him to recover his wasted expenditure.

16. Remedies I: compensatory damages

2018 ◽  
Author(s):  
Janet O’Sullivan
Keyword(s):  
Financial Loss ◽  
Breach Of Contract ◽  
The Core ◽  
Contributory Negligence ◽  
The Subject ◽  
Compensatory Damages

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on compensatory damages, the principal remedy for breach of contract, and explores the actionable types of loss. It deals with the various measures of damages, how they are quantified, and discusses the circumstances in which the claimant can recover for non-financial loss. It explores principles of causation and the remoteness of damage test for breach of contract, the requirement of mitigation and the defence of contributory negligence.

29. Remedies beyond compensatory damages

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Breach Of Contract ◽  
Legitimate Interest ◽  
Specific Performance ◽  
Equitable Relief ◽  
Compensatory Damages

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving him of his profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform his contract. Injunctions can either prevent a person from breaching his contract (prohibitory injunctions) or force a person to comply with his contract (mandatory injunctions).

12. Additional Remedies

2019 ◽  
pp. 191-202
Author(s):  
James Devenney
Keyword(s):  
Common Law ◽  
Breach Of Contract ◽  
Unjust Enrichment ◽  
Specific Performance ◽  
Questions And Answers

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary and other features. The standard common law remedy of damages will not always prove adequate for the victim of a breach of contract. Equity therefore developed a number of additional remedies, discretionary in nature, aimed at ensuring that a claimant was not unreasonably confined to an award of damages; in particular, specific performance and injunctions. The possibility of awarding restitutionary damages, in part to offset any unjust enrichment secured by a contract-breaker, is also considered.

scholarly journals Eating Human Beings: Varieties of Cannibalism and the Heterogeneity of Human Life

Philosophy ◽  
2016 ◽  
Vol 91 (4) ◽  
pp. 483-501
Author(s):  
Mikel Burley
Keyword(s):  
Present Article ◽  
Human Life ◽  
Important Task ◽  
Human Society ◽  
Human Being ◽  
Human Beings ◽  
Making Sense ◽  
The Face ◽  
Human Flesh ◽  
Ways Of Being

AbstractPhilosophy as well as anthropology is a discipline concerned with what it means to be human, and hence with investigating the multiple ways of making sense of human life. An important task in this process is to remain open to diverse conceptions of human beings, not least conceptions that may on the face of it appear to be morally alien. A case in point are conceptions that are bound up with cannibalism, a practice sometimes assumed to be so morally scandalous that it probably never happens, at least in a culturally sanctioned form. Questioning this assumption, along with Cora Diamond's contention that the very concept of a human being involves a prohibition against consuming human flesh, the present article explores how cannibalism can have an intelligible place in a human society – exemplified by the Wari’ of western Brazil. By coming to see this, we are enabled to enlarge our conception of the heterogeneity of possible ways of being human.

JC Smith's The Law of Contract

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Strong Focus ◽  
Key Points ◽  
Expert Analysis ◽  
The Law ◽  
Unfair Terms ◽  
Compensatory Damages ◽  
Contractual Rights

Driven by exposition of the leading cases, JC Smith’s The Law of Contract offers the perfect balance between accessibility and authority. The strong focus on cases guides the reader through the intricacies of contract law with expert analysis ensuring key points are clear. The text begins with an introduction to contractual rights and duties. It looks at objectivity in contract law, the formation of bilateral and unilateral contracts, contract as agreement, offeror and offeree, estoppel, legal relations, and the role of third parties. It also considers the terms of the contract, interpretation of the contract, implication and rectification, and exclusion clauses and unfair terms. It goes on to look at issues such as duress, undue influence, good faith, capacity, illegality, contractual assumptions, breach of contract, remedies and damages, and remedies beyond compensatory damages.

Classification of a defect as breach of contract or tort: a comparative study of the U.S. and the Republic of Lithuania

2019 ◽  
Author(s):  
Nancy J. White ◽  
Sigitas Mitkus ◽  
Renata Cibulskienė
Keyword(s):  
United States ◽  
Tort Liability ◽  
Breach Of Contract ◽  
Warranty Period ◽  
New Interpretation ◽  
The Republic ◽  
Compensatory Damages ◽  
Unites States ◽  
Practical Implications

Purpose – this paper compares the approach of United States’ law and Lithuanian law in classifying a construction defect as a breach of contract or tort. Research methodology – the paper uses case studies to analyze. Unites States’ law approach divides damages into damages for breach of contract and tort damages. According to Lithuanian law, civil liability is assigned to contractual and non-contractual (tort) liability depending on the nature of the unlawful actions. Findings – the cases demonstrate that a defect usually is considered a breach of contract. Different types of damages are recoverable: compensatory damages according to United States’ law and direct and indirect damages are recoverable according to Lithuanian law. Research limitations – both contractual and non-contractual liability are analyzed. In addition, defects to construction by an act of fraud are covered. More research is needed on how the law affects the extension of the warranty period or the statute of limitations. Originality/Value – the paper provides a new interpretation of classification a construction defect as a breach of contract or tort and offers new insights comparing the different approach of law. Practical implications – the paper will be instructive to developers, contractors, management corporations

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