2222 convention principle this principle limits the

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2.2.2.2. Convention Principle: This principle limits the liability of the party who commits a breach of contract to those damages which the innocent party can prove as having been agreed on between them, explicitly or presumably. The parties must have contracted from the premise that such damages would be paid. Thus innocent party has to prove either an express or an implied provision concerning the damages. In terms of case law it appears that liability for special damages is ltd by means of the convention principle Shatz Investment Case. Authors are of the opinion that it should be limited by the contemplation principle. 3. Duty to limit, prevent or mitigate damage or loss: Duty of injured party to prevent or mitigate the damages. But 1 should only do what is reasonable. Guilty party not liable for damages which injured party could have
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50 | P a g e S t a c y c h e m b e @ g m a i l . c o m limited or mitigated by exercising reasonable care. Onus is on party in breach to prove that the injur ed party didn’t act reasonably. Reasonable expenditure to mitigate damage or loss is recoverable. Z did incur damage. He incurred patrimonial damage. His estate is now smaller than it would have been if breach didn’t occur. Damnum emergens is the loss of his house which he lived in & the amount which he paid to move his contents of his old house. Luc rum cessans is the loss of 3 days income because he didn’t work because he was preparing to move. S is the Factual Causation of the damage of Z. S is the Legal Causation of the damages of Z. The damages of selling his house & paying for the moving of the contents of his house are General damages. Thus S will be held liable for the general damages. The amount Z lost because he didn’t work for 3 days constitutes Special Damages. Thus S not working, falls under the Contemplation Principle. Y let premises to X. The lease contained a clause prohibiting X from subletting the premises without written consent of Y. A further clause of the lease required any variation of the terms of the lease, had to be in writing and signed by both parties. Assume that X and Y did sign a variation of the lease allowing X to sublet a portion of the premises and thereafter Y changed his mind and prohibited X from subletting. Discuss X’s position with reference to “Tuckers Land Development Case”. (10) Repudiation: Conduct of guilty party must indicate a refusal to perform.
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51 | P a g e S t a c y c h e m b e @ g m a i l . c o m Repudiation is anticipatory in the sense that it foreshadows or pre-empts another form of breach being committed. Test to be applied: An objective test is applied. The Question is: Whether the party renouncing has acted in such a way as to lead a reasonable person to the conclusion that he doesn’t intend to fulfill his part of the contract.
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