Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

scholarly journals The Case for Specific Performance as the Primary Remedy for Breach of Contract in New Zealand

2004 ◽  
Vol 35 (3) ◽  
pp. 657
Author(s):  
Fionnghuala Cuncannon
Keyword(s):  
New Zealand ◽  
Historical Development ◽  
Common Law ◽  
Civil Law ◽  
Breach Of Contract ◽  
Administration Of Justice ◽  
Specific Performance ◽  
The Common ◽  
The Right ◽  
Practical Impact

This article examines the appropriateness of damages as the primary remedy for breach of contract in New Zealand. It argues that the civil law approach to contractual remedies, which gives primacy to performance of the obligation, is superior to New Zealand's common law position, which merely seeks to replace the right to performance with an award of damages. The importance of both the normative and practical impact of the remedial framework is examined in order to demonstrate that specific performance is better able to facilitate commercial endeavours. The three justifications for the primacy of damages in the common law (the historical development, the economic theory of efficient breach, and the concern that specific performance will overburden the administration of justice) are examined but rejected as adequate justification for the common law position. It contends that specific performance should be the primary remedy because it is more consistent with the principles that underlie the law of contract. It also contends that specific performance is more practical because it reduces conflict and promotes efficiency. The recommendation is that any change should be through appropriate legislation.

The Efficient Breach Theory under Jordanian Civil Law

2016 ◽  
Vol 30 (4) ◽  
pp. 336-356
Author(s):  
Yusuf Mohammed Gassim Obeidat
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Breach Of Contract ◽  
Law System ◽  
Legal Rules ◽  
Specific Performance ◽  
History Of ◽  
The Common ◽  
The Right

This study examined the ‘efficient breach’ theory and its possible application under Jordanian Civil Law. The theory says the promisor has the right to breach a contract and pay damages whenever his profit from breach exceeds his expected profits from performance. As a prerequisite for its application, the theory requires the general remedy for breach to be the payment of damages, rather than forced performance. Thus, the main area for its application is the common law system, since it favours damages as a primary remedy. This study reached the conclusion that the theory cannot work under Jordanian Civil Law, where the primary remedy for breach of contract is specific performance, that forces the promisor to complete the contract. In addition, it contradicts the good faith principle that Jordanian law is based upon, amongst other principles, and goes against the history of Jordanian legal rules.

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.

Foreign Judgments and Contracts: The Anti-enforcement Injunction

2021 ◽  
pp. 251-272
Author(s):  
Tiong Min Yeo
Keyword(s):  
Common Law ◽  
Case Law ◽  
Recent Case ◽  
Breach Of Contract ◽  
England And Wales ◽  
The Common ◽  
Foreign Judgment

This essay examines, within the common law world, the practice of courts in England and Wales and in Singapore of granting injunctions to restrain the enforcement of foreign judgments, with particular reference to cases in which the injunction is sought to protect a contractual right. It considers the approach in recent case law, contrasting the ‘anti-enforcement injunction’ with the more frequently granted ‘anti-suit injunction’. It further seeks to differentiate cases where the proceedings leading to the foreign judgment had been brought in breach of a choice of court or arbitration agreement from cases where the reliance on the foreign judgment is the breach of contract.

Claims for Performance

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Breach Of Contract ◽  
Specific Performance ◽  
The Common ◽  
The Difference

This chapter examines what the contract law says about claims for performance. It first considers the difference between the civil law in which claims for the performance of the contract are generally admitted, and the common law where ‘specific performance’ is awarded only exceptionally. A closer analysis shows, however, that the gap between the civil law and the common law is not as great as it might appear, and it is on that basis that the chapter discusses in some detail the harmonisation of the European rules on claims for the performance of contracts. The chapter also looks at the idea of an ‘efficient breach of contract’ as it relates to claims for performance.

Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

2020 ◽  
Vol 68 (1) ◽  
pp. 1-54
Author(s):  
Leon Yehuda Anidjar ◽  
Ori Katz ◽  
Eyal Zamir
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Policy Implications ◽  
Breach Of Contract ◽  
Lab Experiments ◽  
Specific Performance ◽  
Lively Debate ◽  
The Common ◽  
Injured Party ◽  
Equitable Relief

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

5. Contract IV: discharge of contract and remedies for breach

2019 ◽  
pp. 67-80
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Law Reform ◽  
Breach Of Contract ◽  
Essential Information ◽  
Specific Performance ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for and how to achieve extra marks. This chapter focuses on contract law. It discusses the discharge of contracts and the remedies for breach of contract where one of the parties has failed in their contractual obligations. Contracts can be discharged through performance, agreement, frustration, or breach. In the event of frustration, the parties can establish their own remedies or they can rely on the provisions developed through the Law Reform (Frustrated Contracts) Act 1943. Remedies have been established through the common law and equity. Damages are the primary remedy in most cases, but equitable remedies include specific performance, injunctions, and rectification.

11. Damages

2019 ◽  
pp. 174-190
Author(s):  
James Devenney
Keyword(s):  
Common Law ◽  
Great Emphasis ◽  
Breach Of Contract ◽  
Specific Performance ◽  
Questions And Answers ◽  
The Common

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 common law places great emphasis on damages as the primary remedy for breach of contract, reinforced by the fact that although a victim of a breach may seek specific performance or an injunction, such orders are equitable in nature and therefore discretionary. In claiming damages, the victim of a breach will need to establish that: the claimed method for assessing damages is appropriate (measure); the damages are not too remote (remoteness); if relevant, compensation for inconvenience and/or disappointment caused by the breach is recoverable (non-pecuniary losses); the losses could not have been reasonably mitigated (mitigation); and the recoverable losses have been properly quantified (quantification). Separately, the validity of any agreed damages clause will need to be determined.

scholarly journals ROLE OF FICTIONS IN REGULATION OF PROPERTY RELATIONS IN THE MEDIEVAL ENGLISH LAW

2016 ◽  
pp. 0-0
Author(s):  
Роман Рыбаков ◽  
Roman Rybakov
Keyword(s):  
Common Law ◽  
Case Law ◽  
Historical Method ◽  
Property Relations ◽  
Legal Method ◽  
The Common ◽  
Legal Fictions ◽  
Interpretation Method

The article is devoted to legal fictions in regulating property relations in the English medieval common law (XIII—XVII centuries). Fictions are explained as features influencing the development of law, means of expansion of courts’ jurisdiction and mechanisms of the development of remedies protecting property relations. The article focuses on the role of fiction during the appellate review stage. Relevant case law is analyzed in this article. In this research the author uses the following set of methods of scientific cognition: dialectical method, historical method as well as special scientific research methods, such as technical legal method, comparative law method, formal legal method and legal interpretation method. This research results in better understanding of the role of fictions during the appellate review stage and provides analysis of differences between legal fictions used in the medieval civil law and the common law. In conclusion, the author suggests a classification of legal fictions’ functions in the medieval English common law.

General

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
Rigorous Analysis ◽  
Breach Of Contract ◽  
Self Help ◽  
Judicial Remedies

The concept of a remedy has rarely been subjected to rigorous analysis. Views may differ as to precisely what one is talking about. In this book, a remedy is used to denote the relief that a person can seek from a court. The focus is therefore entirely on judicial remedies; and not on what are sometimes termed ‘self-help’ remedies, which are available without coming to court, such as out of court settlements, termination of a contract, and the ejection of trespassers. Put another way, this book examines what a person can obtain from a court to counter an infringement (or threatened infringement) of his or her rights by a tort or breach of contract (or, in chapter 26, by an equitable wrong); but it is not concerned with any other legally permissible options open to a person to counter such an infringement.

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