TEST: What did the parties agree to be liable for in the agreement ? What losses did D expressly or impliedly consent to be liable for? Do not look at the damage occasioned, but rather at the nature of the contract HYPO: Blacksmith who fails to properly shoe a horse – not liable that the man riding it misses his marriage - not foreseeable HYPO: Contract of carriage of sugar from to Bazara. Purchaser is going to sell it on the open market. Carrier knows its cargo is sugar and that it’s going to a port with a open market. Carrier delivers a week late. Market price of sugar on the day should have delivered is 7% higher than the market price when it arrives. For carrier: do not care what they carry & not foreseeable what price will be at any given moment least cost avoider is the owner of the cargo. Carrier cannot be expected to be expert in sugar For P: so long as carrier knows it is sugar and that there is an open market, seems foreseeable that a consequence of late delivery is fluctuation in price – awardable as expectancy loss This is something they should have had in their contemplation ( Hadley ) HYPO: B, in breach of contract to invest in lumber, invests in distillery instead , which makes 5x the profit the lumber would have made. Can A sue B for the additional 7% profit that B made on the investment actually made instead of the one agreed on? P can only sue for his loss and not for D’s profit [Only circumstance that you can recover additional profit is breach of fiduciary relationship, embezzlement - constructive trust created and any profit from subsequent venture is recoverable.] I f you can’t prove what you would’ve had, then you go for reliance damages and get back what you paid to other party Restitution does not work here – can recover what you would confer on them, but not what they gained elsewhere HYPO: K to purchase gowns for daughter’s wedding . Tailor making the gowns fails to deliver in time. Father is distraught. Can P recover the additional emotional loss of daughter? No – (1) purchaser is dad, not daughter, (2) unless expressly communicated this is what dresses for it’s a special loss that will not fall within domain of foreseeability 31
HYPO: Designer poorly constructs wedding dress purchased by dad . Daughter has to have another hurriedly made and not what she wants. He knows he is specifically commissioned to make wedding dress. Dad recover for daughter’s mental anguish? No – purchaser is dad, not daughter – but given it is made for her if P expressly told designer this then there is better chance But generally goes back to nature of what is agreed – daughter’s distress was that she did not like her dress and was not well-made – loss that is reasonably foreseeable is cost of another dress, but not mental anguish (will be very hard to recover) HYPO: Contract for carriage of corpse - all about comforting the distressed so foreseeable that breach will cause such distress **So long as the kind of harm is foreseeable you can recover even though extent of the harm is unforeseeable (pig-hopper
You've reached the end of your free preview.
Want to read all 34 pages?
- Summer '11
- The Land, promise