Presentation on theme: "Remedies Part II In this lecture, we consider remedies for breach of contract other than damages, namely: i. an agreed sum ii. specific performance iii.injunctions,"— Presentation transcript:
Remedies Part II In this lecture, we consider remedies for breach of contract other than damages, namely: i. an agreed sum ii. specific performance iii.injunctions, and, iv.quantum meruit.
Agreed sum An agreed sum usually means that the claimant is suing for the PRICE of the contract. It differs from a claim in damages in that: i. there is no need to prove loss, and so ii.there is no need to worry about remoteness of damage, nor to iii.mitigate loss
White and Carter (Councils) Ltd v McGregor 1962 In the House of Lords it was held that the advertisers had been entitled to carry out the contract and could recover the full contract price. Lord Reid stated that in the case of an anticipatory breach the innocent party may either accept the repudiation and sue for damages or he may affirm the contract and then sue for an agreed sum, as the plaintiffs did here.
At common law the position would appear to be that the debtor only has to pay the actual price of the contract without interest. However, this common law position is usually avoided by either: i.an express term in the contract stating that interest will be charged for late payment or ii.application of the Late Payment of Commercial Debts (Interests) Act 1998 though this only applies to sale and supply contracts where both sides are acting in the course of a business.
Specific performance We should remember that damages for breach of contract are the main remedy for breach of contract. Specific performance is rare, other than in contracts for the sale of land. An order of specific performance is an equitable, and therefore discretionary remedy, that compels the actual performance of the contract.
Specific performance is only available where i.damages are not an adequate remedy, ii. he who comes to equity comes with clean hands, iii.the contract is not one for personal services, iv.the contract would not take a lot of supervision to enforce, and v.where the performance to be enforced is clearly ascertainable.
Beswick v Beswick 1968 It was Lord Reid in the House of Lords that awarded specific performance to achieve a just result in the circumstances of the case. Lord Pearce granted specific performance because he said it was a more appropriate remedy.
Lord Reid The respondent s second argument is that she is entitled in her capacity of administratix of her deceased husbands estate to enforce the provision of the agreement for the benefit of herself in her personal capacity, and that a proper way of enforcing that provision is to order specific performance. That would produce a just result, and, unless there is some technical objection, I am of opinion that specific performance ought to be ordered…
Lord Pearce The present case presents all the features which led the equity courts to apply their remedy of specific performance. The contract was for the sale of a business. The defendant could on his part clearly have obtained specific performance of it if Beswick senior or his adminstratix had defaulted. Mutuality is a ground in favour of specific performance.
Specific performance is also only available on the basis that he who comes to equity comes with clean hands – one has to remember that specific performance is an equitable remedy and so equitable maxims apply. So, the court may refuse specific performance if it thinks the claimants behaviour has been tricky or unfair. This equitable point was explored in Quadrant Visual Communications Ltd v Hutchinson Telephone (UK) Ltd 1993.
Contracts for personal services Page One Records Ltd v Britton 1968
Where the contract does/does not need a lot of supervision Ryan v Mutual Tontine Westminster Chambers Assoc 1893 Posner v Scott-Lewis 1986 Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd 1997
Where the courts can readily see what had to be done to perform the contract Wilson v Northampton and Banbury Railway Company 1874
Injunctions Injunctions are either PROHIBITORY or MANDATORY. Prohibitory ones are used to stop one side acting positively when the contract is designed to prevent positive action. Mandatory ones are used to compel some action. Both are equitable and discretionary.
Prohibitory injunctions See Lumley v Wagner 1852
The courts only apply the Lumley and Wagner use of injunctions where: i. - the contract had the negative provision included as an express term, and, - the defendant is able to get some work to live off: see Warner Bros Pictures Inc v Nelson 1937
Mandatory injunctions An example of when a mandatory injunction might be used is to make a landlord let tenants back if he evicted them in breach of their contract.
Quantum meruit Planche v Colburn 1831 British Steel Corporation v Cleveland Bridge and Engineering Co ltd 1984 Cutter v Powell