Remedies for Breach of Contract

1996 ◽  
Vol 1 (1) ◽  
pp. 43-78
Author(s):  
William W McBryde

This paper,first presented on 21 October 1995 at ajoint seminar ofthe Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, is a critical survey of the remedies available in Scots law for breach of contract. It considers interest, specific implement, interdict, breach of contract, the mutuality principle, damages and penalty clauses.

1997 ◽  
Vol 1 (2) ◽  
pp. 155-179 ◽  
Author(s):  
Andrew Burrows

This paper,first delivered on 21 October 1995 at ajoint seminar ofthe Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach ofcontract, is an examination ofthose areas ofremediesfor breach ofcontract that are, or have been, the subject of review by the English Law Commission. The following topics are addressed: aggravated, exemplary and restitutionary damages; contributory negligence as a defence to breach ofcontract; interest on late payment of contractual debts; damages in contracts for the benefit of third parties; penalty clauses; and limitation periods. In addition some comments are made on remoteness ofdamage. It is concluded that there should not be a codification ofthe law in this area, although there is room for incremental reforms.


1997 ◽  
Vol 1 (2) ◽  
pp. 200-226 ◽  
Author(s):  
Hector L MacQueen

This paper,first presented on 21 October 1995 at ajoint seminar ofthe Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, considers the future development of the law in this area, first by considering its history and current state in comparative terms and drawing the conclusion that it is characterised by a mixture of Civilian and Common Law elements; second, by comparing Scots law with the provisions on breach contained in recently published proposals for a harmonised law of contract (the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law prepared by the Lando Commission, and the draft “code”for the United Kingdom prepared on behalf of the English Law Commission by Harvey McGregor in the late 1960s) and in international conventions on the sale of goods. Although Scots law emerges reasonably wellfrom this exercise, there are a number of points to be taken on board in any future reform, as well as some insights into important underlying principles.


1999 ◽  
Vol 3 (3) ◽  
pp. 341-358 ◽  
Author(s):  
Edwin Cameron

This paper was first presented on 19 October 1996 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of constructive trusts. Although trusts are a distinctively Common Law institution, seemingly incompatible with Civilian concepts of property, trust law has been received in the mixed South African legal system. But constructive trusts have found no place in South African trust law, in the view of the author, rightly so. Much of the work performed by the constructive trust can be achieved through the law of obligations, while the acceptance of the institution can produce anomalous results in insolvency.


1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.


Author(s):  
Stannard John E ◽  
Capper David

The aims of this book are to set out in detail the rules governing termination as a remedy for breach of contract in English law, to distil the very complex body of law on the subject to a clear set of principles, and to apply the law in a practical context. This book is divided into four parts. The first section sets out to analyse what is involved in termination and looks at some of the difficulties surrounding the topic, before going on to explain the evolution of the present law and its main principles. The second section provides a thorough analysis of the two key topics of breach and termination. The third section addresses the question when the right to terminate for breach arises. And the fourth and final section considers the consequences of the promisee's election whether to terminate or not. The final chapter examines the legal consequences of affirmation, once again both with regard to the promisee and the promisor, with particular emphasis on the extent of the promisee's right to enforce the performance of the contract by way of an action for an agreed sum or an action for specific performance.


1894 ◽  
Vol 40 (169) ◽  
pp. 249-251

With the publication in the “Pall Mall Magazine” of the first of Lord Wolseley's articles on “The Decline and Fall of Napoleon,” the inveterate controversy as to the position of the “Corsican Parvenu” in the military and general history of the world assumes a new aspect, the development of which, as psychologists, we shall watch with much interest. There have already been three great epochs in this protracted conflict of opinion. To his contemporaries and rivals of the type of Dumouriez, Bonaparte was a magnificent charlatan of mediocre ability, fit only to serve as a divisional commander under men of light and leading like themselves. The school of thought, however, which saw no genius in the famous march from Boulogne to Ulm and Austerlitz necessarily wielded an ephemeral influence, and was quickly superseded by the reactionary school, of whose views Thiers was at once the founder and the ablest exponent. Over the veteran author of “The Consulate and the Empire” the spirit of Napoleon exercised a fascination of which the records of hero-worship furnish few analogies. Then came the school of Lanfrey, Taine, and Seeley. The method which these great writers sought to pursue in investigating the life and character of Bonaparte was excellent. They set before themselves as the object to be attained a cold, critical survey, detached alike from the rancour of Dumouriez and the adulation of Thiers. But they failed, and failed badly. In spite of all their critical acumen—and perhaps because of it—the Napoleonic idea eluded their grasp. They were no better fitted for their task than Bunyan would have been for that of writing an impartial biography of Charles the Second, and the writer who will raise a real living Napoleon from the 32 volumes of “Correspondance” in which his life and thoughts are entombed has still to appear above the literary horizon. Lord Wolseley makes no attempt to fill this vacant rôle. Indeed, we doubt whether it could be adequately filled by one who believes Napoleon to have been “the greatest of all the great men” that ever lived. But he makes a contribution of much interest and value to a question that has been occasionally mooted of late years, viz., What was the mysterious malady from which the French Emperor suffered at the close of his public life in Europe? Perhaps we ought to suspend a definite answer to this question till we see what else Lord Wolseley has to say on the subject in his remaining articles. But in the meantime a rapid summary of the evidence on the point available to any student of modern French literature may not be inopportune. Of course, the matter to be considered is whether there was, in fact, at the end of Napoleon's military career a failing in his powers. Our ancestors would, no doubt, have deemed it unpatriotic to question that the “Boney” whom Wellington beat at Waterloo not only knew his best and did it, but was as competent a general as the hero of Arcola and Rivoli. But this comforting position is no longer tenable. Lord Wolseley points to the fatal delay of Napoleon at Wilna in the Russian campaign of 1812, and his equally fatal omission to support Ney at the crisis of the battle of Borodino; and, if we mistake not, the campaigns of Leipsic and Waterloo yield evidences still more cogent that the very faculty of commandership repeatedly deserted Bonaparte at the time when its presence was essential to his fortunes. The direct testimony of his contemporaries to the same fact is not wanting. Marshal Augereau (as we learn from Macdonald's memoirs) noticed it, although his coarsely-grained and jealous mind saw in it only a proof of the incompetence which he preferred to consider as a characteristic of his master, and the officers who received the fugitive Corsican on his return from Elba were astounded at his alternate fits of garrulity and silence, tremendous energy and hopeless lassitude. If, then, the fact of Napoleon's mental and physical decline is established, what was the cause? Lord Wolseley goes no further at present than “mental and moral prostration,” and there is certainly nothing extraordinary in the theory that the prodigious and continuous strain to which the mighty intellect of the great captain had for years been subjected was at last destroying its machinery. But there is also positive evidence, we think, that Napoleon had become the victim of epilepsy, and without dwelling on the subject further just now, till Lord Wolseley's series has been completed, we may point out that the theory here suggested derives some corroboration from the circumstance on which his lordship's first article offers abundant proof, that while Napoleon's power of executing his plans was impaired, the splendour of his military imagination survived, and even increased in apparent brilliancy at the last.


Author(s):  
Janet O’Sullivan

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 examines non-compensatory remedies for breach of contract. It analyses why a non-compensatory remedy can be desirable and discusses the four types of non-compensatory remedies. These include restitution for total failure of basis, forfeiture of deposits, negotiation damages (or the user principle), disgorgement, and punitive damages.


Author(s):  
Janet O’Sullivan

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 examines non-compensatory remedies for breach of contract. It analyses why a non-compensatory remedy can be desirable and discusses the four types of non-compensatory remedies. These include restitution for total failure of basis, forfeiture of deposits, negotiation damages (or the user principle), disgorgement, and punitive damages.


Author(s):  
Janet O’Sullivan

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.


Author(s):  
Robert Merkin ◽  
Séverine Saintier

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Contractual damages aim to compensate the injured party for the loss suffered due to breach of contract. Damages for breach are compensatory and not punitive so that it is possible to recover only for the actual loss suffered by the injured party. This chapter considers the different measures to achieve compensation for loss suffered as a result of the breach and the limitations on the ability to be fully compensated in a breach of contract claim. It also discusses agreed damages provisions and their enforceability.


Sign in / Sign up

Export Citation Format

Share Document