17. Duress

2021 ◽  
pp. 264-274
Author(s):  
Paul S. Davies
Keyword(s):  
General Rule ◽  
Economic Interests ◽  
Breach Of Contract ◽  
Physical Integrity ◽  
Reasonable Alternative

Duress occurs when B exerts illegitimate pressure upon A to enter into a contract, leaving A with no reasonable practical alternative but to enter into that contract. Duress is founded upon a threat made by B to A, but there is no tort of duress. However, duress will render a contract voidable. This chapter considers the two principal forms of duress. The first is physical act duress, where A’s physical integrity is threatened. The second is economic duress, where A’s economic interests are threatened. Particularly in the context of economic duress, it is important that the threats caused A to enter into the agreement, and that A had no reasonable alternative but to succumb to the threat. As a general rule, any threatened breach of contract can constitute illegitimate pressure. In some instances, even a threat to carry out a lawful act may, perhaps, ground a claim in duress.

17. Duress

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
General Rule ◽  
Economic Interests ◽  
Breach Of Contract ◽  
Physical Integrity ◽  
Reasonable Alternative

Duress occurs when B exerts illegitimate pressure upon A to enter into a contract, leaving A with no reasonable practical alternative but to enter into that contract. Duress is founded upon a threat made by B to A, but there is no tort of duress. However, duress will render a contract voidable. This chapter considers the two principal forms of duress. The first is physical act duress, where A’s physical integrity is threatened. The second is economic duress, where A’s economic interests are threatened. Particularly in the context of economic duress, it is important that the threats caused A to enter into the agreement, and that A had no reasonable alternative but to succumb to the threat. As a general rule, any threatened breach of contract can constitute illegitimate pressure. In some instances, even a threat to carry out a lawful act may ground a claim in duress.

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.

scholarly journals LIABILITY TO DISGORGE PROFITS UPON BREACH OF CONTRACT OR A DELICT

Obiter ◽  
2021 ◽  
Vol 34 (1) ◽  
Author(s):  
EJH Schrage
Keyword(s):  
General Rule ◽  
Breach Of Contract ◽  
Unjust Enrichment

Remedies regarding contract and tort are, generally speaking, concerned with the incidence of liability for loss or damage suffered, whereas the claim in unjust enrichment is said to require that the enrichment has occurred at the expense of the creditor. Consequently claims for breach of contract and tort are brought for damages. The following claims will, however, be denied: profits from the party who breached thecontract, the tortfeasor or which the otherwise unjustly enriched defendant has gained as a result of breaching the contract, committing the tort or invading the rights of the plaintiff. There are, however, numerous exceptions to this general rule to be found in various jurisdictions. Consequently the question arises whether these exceptions do or do not amount to a new general rule concerning disgorgement of illegally obtained profits.

Breach of contract and the expectation deficit: inconvenience and disappointment

Legal Studies ◽  
2007 ◽  
Vol 27 (1) ◽  
pp. 126-154
Author(s):  
Adrian Chandler ◽  
James Devenney
Keyword(s):  
Public Policy ◽  
Full Range ◽  
General Rule ◽  
Case Law ◽  
Breach Of Contract ◽  
Peace Of Mind ◽  
House Of Lords ◽  
Expected Benefits

One of the most controversial aspects of the assessment of damages for breach of contract is the extent to which there can be recovery for ‘intangible’ losses such as disappointment and inconvenience. In Watts v Morrow, Bingham LJ assumed that public policy generally proscribed contractual liability for such losses, unless the object of the contract was to provide pleasure and/or peace of mind, or the breach caused foreseeable physical inconvenience to the victim. Unfortunately, Watts, and its associated case-law, offered scant guidance on the underlying rationale for either the general rule or its two exceptions. Consequently, more recent judicial pronouncements on this issue, particularly from the House of Lords, are to be welcomed insofar as they demonstrate a greater preparedness to eschew the use of arbitrary policy constraints in favour of focusing upon a claimant’s expected benefits as contained within the contract. In so doing, disappointment and inconvenience appear to be subject to the same rules of recovery. This paper will seek to justify and encourage this trend, arguing that a logical application of the principles contained within Hadley v Baxendale and Robinson v Harman dispenses with any need to use ‘policy’ as a means of limiting the recovery of damages for disappointment and inconvenience, more properly takes account of a claimant’s known preferences, and ensures that all forms of inconvenience and disappointment are subject to the same rules; in short, that damages properly reflect the full range of the claimant’s expectation deficit.

23. Damages

Contract Law ◽  
2020 ◽  
pp. 791-900
Author(s):  
Ewan McKendrick
Keyword(s):  
Mental Distress ◽  
General Rule ◽  
Legal Regulation ◽  
Breach Of Contract ◽  
Section 8 ◽  
Contributory Negligence ◽  
Interest Section

This chapter examines the entitlement of a claimant to recover damages in respect of a breach of contract committed by the defendant, and is organized as follows. Section 2 discusses the different measures of damages that can be awarded, while Section 3 analyses the performance interest. Section 4 examines the circumstances in which a claimant can seek damages based on his ‘reliance’ losses rather than his performance interest, while Section 5 discusses the circumstances in which damages may be awarded to protect the claimant’s ‘restitution’ interest. Section 6 examines the entitlement of a claimant to recover damages in respect of non-pecuniary losses, particularly ‘mental distress’. Section 7 considers the general rule that damages are assessed as at the date of breach and the exceptions to that rule, while Section 8 considers the various doctrines which the courts use in order to keep liability within acceptable bounds. These include remoteness, mitigation, and contributory negligence. Section 9 examines the circumstances in which a claimant can recover what is known as ‘negotiating damages’ or the defendant can be ordered to account to a claimant for the profits that he has made from his breach of contract. Section 10 looks at the possibility that exemplary damages might play a role in breach of contract cases. The chapter concludes, in Sections 11 and 12, with a discussion of agreed damages clauses (and related clauses) and their legal regulation.

scholarly journals Tradición romanística y perspectivas de reforma en sede de cláusula penal

2012 ◽  
Author(s):  
Alejandro Valiño Arcos
Keyword(s):  
Civil Law ◽  
General Rule ◽  
Civil Code ◽  
European Contract ◽  
Breach Of Contract ◽  
Specific Performance ◽  
El Sistema ◽  
The Common ◽  
Civil Codes ◽  
Preliminary Draft

El autor analiza el tratamiento legal de la cláusula penal en el Derecho civil español, con especial atención a la regulación que ofrece el Código civil en los artículos 1152 a 1154, las diferentes funciones que la cláusula penal cumple y el distinto régimen presente en la Lex 518 del Fuero Nuevo de Navarra, lo cual evidencia el dualismo habido en el sistema jurídico español entre el Derecho civil común (representado por el Código civil) y el derecho foral o especial (representado por distintas compilaciones de ámbito regional). La regulación del Código civil español configura la pena contractual en primer término como sustitutiva de la indemnización de daños y perjuicios prevista en el artículo 1101 del Código civil para el caso de incumplimiento contractual o para los supuestos de cumplimiento deficiente o tardío por parte del deudor. De este modo, se dispensa al acreedor de tener que recurrir a una valoración del daño efectivamente causado, de modo que la cláusula penal viene a ser una estimación anticipada del daño que sustrae al acreedor de la prueba de su existencia. Esta regulación, que se ha mantenido invariable desde la promulgación del Código civil, ha sido objeto de especial atención por parte del Anteproyecto de Modernización del Derecho de Obligaciones elaborado por la Comisión de Codificación del Ministerio de Justicia en 2009, siguiendo las orientaciones presentes en otros Códigos civiles europeos así como las aportaciones de prestigiosos académicos, que son expresión del esfuerzo en pro de la armonización del Derecho contractual europeo.The author analyses the legal treatment of the penalty clause into Spanish Civil Law, with special attention to the regulation offered by the Civil Code in their articles 1152 to 1155, the differents functions which the penalty clause achieves and the differentiated regulation into Fuero Nuevo of Navarra in the Lex 518. All of this can be seen as a reflection of the dualism in Spanish Legal System between the Common Civil Law (represented by the Spanish Civil Code) and the Foral or Special Law (represented by differents regionals compilations). The regulation of the Spanish civil code sets as general rule the contractual penalty as substitute of the regime of compensation into the article 1101 of spanish Civil Code in case of breach of contract or in case of defective or untimely performance by the debtor. This provision allows to the creditor to avoid a real damage assessment, so that the penalty clause lets a advanced estimate of damages without needing to prove them. But also admits the regulation of the penalty clause into the spanish Civil Code other functions, for instance the cumulative penalty (with the legal and previously valued compensation of damages or with the specific performance). This regulation, unchanged since the enactment of the spanish Civil Code, has been object of special attention by the preliminary draft to modernisation of the law of obligations drawn up by the Commission of Codification of the Ministry of Justice in 2009, picking up some of the guidelines present in other European Civil Codes as well as in the contributions of prestigiouses scholars, which are expression of the effort aimed at the harmonisation of European Contract Law.

23. Damages

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Mental Distress ◽  
General Rule ◽  
Legal Regulation ◽  
Breach Of Contract ◽  
Section 8 ◽  
Contributory Negligence ◽  
Interest Section

This chapter examines the entitlement of a claimant to recover damages in respect of a breach of contract committed by the defendant, and is organized as follows. Section 2 discusses the different measures of damages that can be awarded, while Section 3 analyses the performance interest. Section 4 examines the circumstances in which a claimant can seek damages based on his ‘reliance’ losses rather than his performance interest, while Section 5 discusses the circumstances in which damages may be awarded to protect the claimant’s ‘restitution’ interest. Section 6 examines the entitlement of a claimant to recover damages in respect of non-pecuniary losses, particularly ‘mental distress’. Section 7 considers the general rule that damages are assessed as at the date of breach and the exceptions to that rule, while Section 8 considers the various doctrines which the courts use in order to keep liability within acceptable bounds. These include remoteness, mitigation, and contributory negligence. Section 9 examines the circumstances in which a defendant can be ordered to account to a claimant for the profits that he has made from his breach of contract. Section 10 looks at the possibility that exemplary damages might play a role in breach of contract cases. The chapter concludes, in Sections 11 and 12, with a discussion of agreed damages clauses (and related clauses) and their legal regulation.

scholarly journals Specific performance as a primary remedy in the South African law of contract

2015 ◽  
Vol 11 (2) ◽  
pp. 65-72
Author(s):  
Jean Chrysostome Kanamugire
Keyword(s):  
Public Policy ◽  
South African ◽  
Bargaining Power ◽  
General Rule ◽  
Breach Of Contract ◽  
Employment Contracts ◽  
Freedom Of Contract ◽  
Specific Performance ◽  
Recent Developments ◽  
Contractual Obligations

Specific performance is a primary remedy for breach of contract available for the aggrieved party. This order emphasises the performance of contractual obligations. Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. The discretion must be exercised judicially and does not confine on rigid rules. Courts decide each case according to its own facts and circumstances. Plaintiff has a right of election whether to claim specific performance from the defendant or damages for breach of contract. The defendant does not enjoy any choice in this matter. As a general rule, specific performance is not often awarded in the contract of services. However, recent developments have demonstrated that specific performance will usually be granted in employment contracts if there is equality of bargaining power among contracting parties and such order will not produce undue hardship to the defaulting party. Public policy generally favours the utmost freedom of contract and requires that parties should respect or honour their contractual obligations in commercial transactions. Public policy is rooted in the constitution and can sparingly be used to strike down contracts. Specific performance should not continue to be a primary remedy for breach of contract. Contracting parties should be allowed to resile from the contract and use damages as a remedy for breach of contract.

Application Of Electron Probe Analyses Of Minerals In Discussing The Relationship Between Ductile Deformation And Metamorphism

1990 ◽  
Vol 48 (2) ◽  
pp. 250-251
Author(s):  
Fan Guochuan ◽  
Sun Zhongshi
Keyword(s):  
Chemical Composition ◽  
Shear Deformation ◽  
Electron Probe ◽  
General Rule ◽  
Granulite Facies ◽  
Ductile Deformation ◽  
Higher Temperature ◽  
Ductile Shear ◽  
The Relationship ◽  
Ductile Shear Deformation

Under influence of ductile shear deformation, granulite facies mineral paragenesis underwent metamorphism and changes in chemical composition. The present paper discusses some changes in chemical composition of garnet in hypers thene_absent felsic gnesiss and of hypersthene in rock in early and late granulite facies undergone increasing ductile shear deformation .In garnet fetsic geniss, band structures were formed because of partial melting and resulted in zoning from massive⟶transitional⟶melanocrate zones in increasing deformed sequence. The electron-probe analyses for garnet in these zones are listed in table 1 . The Table shows that Mno, Cao contents in garnet decrease swiftly from slightly to intensely deformed zones.In slightly and moderately deformed zones, Mgo contents keep unchanged and Feo is slightly lower. In intensely deformed zone, Mgo contents increase, indicating a higher temperature. This is in accord with the general rule that Mgo contents in garnet increase with rising temperature.

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