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.

Evidence Excluded by State Interest

1968 ◽  
Vol 3 (3) ◽  
pp. 387-415 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Foreign Relations ◽  
General Rule ◽  
Radical Change ◽  
Case Law ◽  
Law Reform ◽  
Public Security ◽  
Public Interests ◽  
House Of Lords ◽  
The Law ◽  
State Secrets

The general rule is established that anyone may lawfully be called to give evidence and to produce every document in his possession, unless he can show a just ground for refusal. In a number of instances the law relieves a witness from the duty of replying, or of producing a document. These are exceptional cases, however, and the burden of establishing their applicability lies on the party claiming the exemption. The modern legal tendency is, so far as possible, to restrict the claims of privilege.Rules of evidence recognize mainly the privilege against self-incrimination, the legal professional privilege, the marital privilege, and “State secrets”, when the Administration objects to the disclosure of information relating to public security, foreign relations or other important public interests. This article deals with the last mentioned privilege—a “thorny topic”, in more than one country. Both case law and doctrinal writings have, over the years, held various views on this problem. In England, the House of Lords' opinion on it has undergone a radical change within the last twenty-five years and it is also under present examination of the Law Reform Committee. The question arose before the Israeli courts on several occasions and the Ministry of Justice drew up three separate bills aimed at its solution, the last of which is now before the Knesset for consideration.

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.

The Old Order Changeth, Yielding Place to the New (Murli Manohar Joshi’s Tenure)

2018 ◽  
Author(s):  
R.V. Vaidyanatha Ayyar
Keyword(s):  
Public Policy ◽  
Case Law ◽  
Theoretical Explanation ◽  
Educational Institutions ◽  
Original Intent ◽  
Policy Problem ◽  
Old Order ◽  
Reinforcing Factors ◽  
The Right

This chapter elaborates the shifting case law over the 24 year period from 1982 to 2006 in regard to the right of private individuals and organisations to establish educational institutions, the regulation of admissions to private-unaided institutions (self-financing institutions), and the regulatory power of AICTE. It offers a theoretical explanation of these shifts by elaborating two major reinforcing factors. The first is the adoption of an interpretational philosophy that legitimates judges going beyond the express wording and original intent of Constitution makers, discerning the purpose underlying a constitutional provision, and applying the purpose so discovered to rectify failures of public policy and governance types. The second factor is the inbuilt trait to expand as a result of a generous policy of admitting appeals. Given that judges differ considerably in the judicial philosophy they hold, and their perception of policy problem and solutions case law has bene fluid, creating uncertainty for institutions which are regulated as well as regulators like the AICTE.

scholarly journals Recent Judicial Developments of Interest to Oil and Gas Lawyers

1995 ◽  
Vol 33 (2) ◽  
pp. 365
Author(s):  
William H. Bonney ◽  
J. Jay Park
Keyword(s):  
Oil And Gas ◽  
Case Law ◽  
Administrative Law ◽  
Offshore Drilling ◽  
Fiduciary Duties ◽  
Governmental Regulation ◽  
House Of Lords

This article is a compilation of recent interesting and potentially influential decisions by Canadian courts. Of note also is a judgment by the House of Lords that appears to significantly restrain the applicability of Rylands v. Fletcher. The authors have surveyed case law development in such areas as contracts, lands, leases and titles, fiduciary duties, tax, the environment, torts, surface rights, governmental regulation, offshore drilling, creditors' rights and administrative law.

scholarly journals A VINCULAÇÃO DO PRINCÍPIO PROCESSUAL DA NÃO-SURPRESA E A APLICAÇÃO DA LEI DE INTRODUÇÃO ÀS NORMAS DO DIREITO BRASILEIRO – LINDB

Percurso ◽  
2019 ◽  
Vol 3 (30) ◽  
pp. 42
Author(s):  
Frabriccio Petreli TAROSSO
Keyword(s):  
Decision Making ◽  
General Rule ◽  
Case Law ◽  
Public Law ◽  
Tax Law ◽  
The Novel ◽  
Legal Certainty ◽  
Federal Law ◽  
National Tax ◽  
Definition Of

RESUMOO presente artigo pretende aproximar alguns conceitos da novel Lei de Introdução às Normas do Direito Brasileiro – LINDB ao princípio da não-surpresa aplicável ao processo tributário, seja ele Administrativo ou Judicial. A Lei Federal n. 13.655 de 25/04/2018 houve por incluir no Decreto-Lei nº 4.657, de 4 de setembro de 1942 - Lei de Introdução às Normas do Direito Brasileiro - disposições sobre segurança jurídica e eficiência na criação e na aplicação do direito público. Deste modo, muitas dúvidas têm surgido acerca da convivência entre a regra geral de direito tributário, inserta no Art. 144 do Código Tributário Nacional, de que a lei vigente à época dos fatos geradores deve ser levada em conta ao deslinde de uma questão e que a jurisprudência majoritária à época dos mesmos fatos – se modificada – não deve servir de parâmetro para a tomada das decisões. PALAVRAS-CHAVE: Lei de Introdução às Normas do Direito Brasileiro – LINDB; Princípio Processual da não-surpresa.ABSTRACTThe present article intends to approximate some concepts of the novel Law of Introduction to the Norms of Brazilian Law - LINDB to the principle of non-surprise applicable to the tax process, be it Administrative or Judicial. Federal Law n. 13,655 dated 04/25/2018, there was a need to include in Decree-Law No. 4.657, dated September 4, 1942 - Law on Introduction to the Rules of Brazilian Law - provisions on legal certainty and efficiency in the creation and application of public law. In this way, many doubts have arisen about the coexistence between the general rule of tax law, inserted in Article 144 of the National Tax Code, that the law in force at the time of the generating facts must be taken into account in the definition of an issue and that the majority case-law at the time of the same facts - if modified - should not serve as a parameter for decision-making. The study will have as a method the legal and bibliographical research on the subject.KEYWORDS: Law of Introduction to the Norms of Brazilian Law – LINDB; Procedural Principle of Non-Surpris

Efficiency, disgorgement and reliance in contract: a comment on Campbell and Harris

Legal Studies ◽  
2002 ◽  
Vol 22 (4) ◽  
pp. 570-577 ◽  
Author(s):  
Peter Jaffey
Keyword(s):  
Economic Theory ◽  
Recent Article ◽  
The Other ◽  
Breach Of Contract ◽  
House Of Lords ◽  
Aggregate Wealth

In a recent article in this journal, David Campbell and Donald Harris criticise the House of Lords decision in A-G v Blake, which held that in some circumstances there can be a liability to surrender the profits of a breach of contract to the other contracting party, ie a liability for disgorgement, as it will be referred to here. The criticism invokes what is sometimes referred to as the economic theory of efficient breach, which can be expressed briefly as follows. The performance of contracts generally increases aggregate wealth – ie is efficient – because parties will contract only on terms that provide them with a benefit that exceeds their costs of performance. But sometimes the circumstances will change after contracting, such that overall wealth will be maximised if the contract is not performed as agreed. For example, the defendant contracting party may discover an opportunity that he or she can take up only by abandoning the contract, and this opportunity may generate enough money to leave a profit, even after the claimant has been compensated for breach.

Legal Skills

2021 ◽  
Author(s):  
Emily Finch ◽  
Stefan Fafinski
Keyword(s):  
Problem Solving ◽  
Oral Presentation ◽  
Full Range ◽  
Writing Skills ◽  
Legal Reasoning ◽  
Case Law ◽  
Final Part ◽  
Essay Writing ◽  
The Law ◽  
Book Covers

Legal Skills is structured in three parts, covering a full range of legal skills. The first part deals with sources of law and includes information on finding and using legislation, case law, books, journals, and official publications, making sure you understand where the law comes from, and how to use it. The second part covers academic legal skills and provides advice on study and writing skills, legal reasoning, referencing and avoiding plagiarism, essay writing, dissertations, problem solving, and revision and examinations. The final part of the book covers the practical legal skills of oral presentation, mooting, and negotiation.

Exclusive possession or the intention of the parties? The relation of landlord and tenant in Northern Ireland

2017 ◽  
Vol 68 (2) ◽  
pp. 202-223
Author(s):  
Mark Hayward
Keyword(s):  
Northern Ireland ◽  
Case Law ◽  
Historical Background ◽  
England And Wales ◽  
House Of Lords ◽  
The Law

The seminal House of Lords judgment in Street v Mountford established that the test for distinguishing between a lease and a licence is whether the occupant has been granted exclusive possession of the premises. The test is objective: the relation of landlord and tenant exists where exclusive possession has been granted, regardless of the intention of the parties. However, this stands at odds with the law in both parts of Ireland, where s 3 of Deasy's Act states that the relation of landlord and tenant 'shall be deemed to be founded on the . . . contract of the parties'. This article analyses the historical background that led to Deasy's Act, surveys contemporary case law in both parts of Ireland on leases vs licences and argues that the law in this area in Northern Ireland differs from that in England and Wales.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

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