The Blip Blop Blog (Team Entity)

In addition to common law remedies for breaches of contract there are also remedies that are provided by equity and they come into play when common law remedies fail to deliver a just outcome. As per the norm equitable remedies are governed by equitable principles or the rules of equity and for breaches of contract the types of equitable remedies that the courts will allow are as follows: - i) Specific performance and ii) Injunctions Specific Performance Specific performance simply means that the courts will compel a party to a contract to perform their duties and obligations under the contract. In Nutbrown v Thornton (1805) the plaintiff entered into a contract with the defendants to purchase some machines. Subsequently the defendant refused to deliver the machines and because the defendant was the sole vendor for that type of machines, the plaintiff brought an action against the defendants and sought specific performance as a remedy. The court granted specific performance and compell

Restitution occurs when a party to a contract has not performed his or her part and instead of claiming damages the other party may want to just claim the money they’ve paid. For example, let’s say that a dancer was contracted to perform at an event and the organizers had paid her an advance in order to secure her performance. She was not the main act but rather the supporting act and on the day of the event, for some reason or other, the dancer did not turn up. Despite the fact that the dancer has breached her contractual duties or obligations, the organizers may simply want to claim the advance that they’d paid, back. Restitution simply means returning to the owner what is rightfully theirs. Restitution is awarded when there has been a total failure of consideration. In Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour (1943) a company in England entered into a contract with a company in Poland to supply machines. The buyer agreed to make partial payment prior to delivery o

In Victoria Laundry (Windsor) Ltd. v Newman Industries Ltd. (1949) the plaintiffs contracted to purchase a boiler from the defendants for use in their existing laundry business with the intention of expanding their business. The plaintiffs were also vying for a lucrative government contract and if they were successful in obtaining the contract, their weekly income would increase manifold. The defendants were aware of the nature of the plaintiffs’ business but were not aware of the fact that the plaintiffs were eyeing a government contract. The boiler was damaged just prior to delivery and there was a substantial delay in repairing the boiler and as a result the plaintiffs not only lost income resulting from their normal business but also lost the valuable government contract that they were after. The plaintiffs sued. The court held that the plaintiffs were able to recover for the loss that they incurred for their normal business because such loss was within the contemplation of the

In deciding whether the plaintiff is entitled to damages for a breach of contract the court will take into account two factors: - i) Causation ii) Remoteness Causation In order for the plaintiff to be awarded damages the defendant must have caused the damage. The damage must be actual and tangible as opposed to something that could or may have caused damage. It however need not be the sole factor that caused the damage. When looking into causation the courts will look into the chain of causation or the sequence of events that led to the damage and in order for the plaintiff to be awarded damages there must not be a break in the chain of causation i.e. the damage must be a direct consequence of the defendant’s actions. In Monarch Steamship Co Ltd v Karlshamns Oljefabriker (1949) the defendants’ ship was chartered to carry soya beans from Manchuria to Sweden. The defendants in the contract had agreed to provide a seaworthy vessel but the ship developed problems and there was

Remedies for a breach of contract are divided into common law and equitable remedies. Common law remedies are divided into: - i) Damages ii) Restitution Damages In Robinson v Harman (1848) it was held that where a party sustains loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same position, with respect to damages, as if the contract had been performed. In order to be awarded damages the aggrieved party must satisfy the three following conditions: - i) The party has suffered some type of loss as a result of the breach. ii) The loss is recognized as a loss that gives rise to compensation. iii) The loss must not be too remote or must be directly foreseeable see The Wagon Mound (1) Loss can be divided into financial loss or pecuniary loss and non-financial or non-pecuniary loss as in instances where the defendant suffers from a mental illness for example in the case of Condor v Baron Knights (1966) where the plaintiff suffered from a mental ill

The banana is the edible fruit of the banana tree. It is a longish fruit, with a yellow outer skin that is easily peeled off and the length of the fruit depends on the type of banana, some are longer than others. There are numerous varieties of bananas; cultivated in different parts of the world and the fruit is high in sugar and potassium content. It is by no means an exotic fruit, it is almost as common as the apple and in certain parts of the world especially in areas close to the equator, the banana tree can grow and thrive in the wild, with almost little or no care and pollination occurs naturally, in most instances without any human intervention, and the seeds of the fruit are often dispersed by animals, usually monkeys, native to equatorial rainforests. The fruit is grown and cultivated commercially, and as the demand for fresh fruit increases, with more and more people becoming increasingly health conscious, and switching to more agrarian diets, the demand for the

The Misrepresentation Act 1967 also governs the law on misrepresentation. S2(1) of the act states that: - Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true. Under s2 (2) of the act the court has a discretion to award damages instead of rescission. “Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings

There are certain contracts which are known as contracts of good faith and the most common example of these type of contracts would be insurance policies whereby the party taking out or purchasing the policy is required to divulge personal details without concealing or hiding any facts. Failure to divulge the necessary information will allow the other party to rescind the contract without recourse to damages. The principle in Latin is called “Uberrimae Fidei”. In Carter v Boehm (1766) the governor of Fort Marlborough in Sumatra took out an insurance policy with Boehm in the eventuality that the fort was attacked. The fort was built by the British East India Co. At the time the policy was taken out there was a possibility that the fort may be attacked on two fronts – by the inhabitants of the island and the French who were keen to exert their authority in the area. Both conflicts revolved around different issues. The locals were trying to take back what was rightfully theirs and th

A mere statement of fact though it may sound like a misrepresentation does not in actual fact constituent or amount to a misrepresentation. In Bisset v Wilkinson (1927) the plaintiff purchased some land from the defendant for the purpose of sheep rearing. The land had never before been used for the intended purpose but during the negotiations the defendant had told the plaintiff that he thought that the land may be able to support up to 2,000 heads of sheep. As it turned out the land was unsuitable for sheep farming and the plaintiff sued. The court held that a misrepresentation must be distinguished from a mere statement of fact. With the sale of certain items, unless the defendant professes to have special knowledge in the area, as in the case of Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965) – where the defendant professed to have specialized knowledge of Bentley cars, it is difficult for either party to know the outcome. It was decided that there was no misrep