Contracts Remedies

Contracts Remedies - Contracts Ch 16 Graw Remedies 16.1 The...

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Contracts Ch 16 Graw: Remedies 16.1 The nature of the breach: This chapter deals with the remedies that are available to an innocent party on a breach of contract. It DOES NOT cover the recourse that might be available in situations that do not constitute breach (eg: mistake, misrepresentation, duress, undue influence, Unconscionability, and illegality). A breach occurs where a contract has come into being an one or other of the parties fails to perform all or some part of the obligations under it. If the breach is a breach of condition or a serious breach of an innominate term, the innocent party may elect to treat the contract as DISCHARGED and can also sue for damages. If the breach is a breach of WARRANTY or a MINOR BREACH of an innominate term, the innocent party may only sue for damages. Treating the Contract as Discharged: Where the breach is one that entitles the innocent party to treat the contract as discharged, a number of consequences follow: 1. The contract comes to an end and both parties are released from remaining obligations 2. Because termination is not retrospective, obligations that have accrued must be performed, the rest can be compensated in damages 3. An innocent party can sue for: a. Unliquidated damages b. A quantum meruit for the part of the contract actually performed c. Money had and received (to recover money when there has been a total failure of consideration) Continuing with the Contract: When the contract is not discharged or turned down the option to discharge there is still a right to damages. Both parties still have to oblige by the contract and if not could be at risk of a future breach. One party is still at a disadvantage so is entitled to compensation. 16.2 Damages: The Usual Remedy Damages are usually awarded for common law breaches of contract. Money is the usual remedy but at times equity has to step in and provide a remedy. The object of Damages: The object of an award for damages is to compensate actual loss in so far as money can do so. - Awards of damage and tort are similar but differ in how they are calculated
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- Damages in tort are awarded to place the aggrieved party in the position he or she would have occupied but for the tort complained of. - In contracts, damages are awarded to place the aggrieved party in the position that he or she would have occupied had the contract been performed as agreed. - Essentially, tort damages look what the position was BEFORE the tort while contractual damages look at what the position should have been AFTER the proper performance of the contract. Actual, nominal and exemplary damages : The result of contractual damages is that the innocent party is assured of recovering actual loss and the guilty party is guaranteed that he or she will not be liable for an amount over and above the actual loss. -
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Contracts Remedies - Contracts Ch 16 Graw Remedies 16.1 The...

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