Contracts Case Briefs + Notes for Midterm #1: Wed, Feb 14, 2018
Remedies p 791
Remedies are either substitute performance (aka damages) or coercive of specific performance. Damages/substitute performance are money. Punishment < Compensation. Common law is the realm of rights; your rights are enforceable for a claim.
Equitable, or discretionary, remedy. Like an injunction, declaration, appointment of receiver. Equitable remedies unlike common law remedies are limitless as they respond to what the situation, requires
The current Canadian law on contractual remedies can be broken into
There is no compulsion to perform. The variety of remedies available to the innocent party for breach of contract may be broadly classified as either compensatory (substitutional) or coercive (specific). The compensatory remedy, which provides the normal relief in actions for breach of contract, is the action for damages.
Compensation for loss suffered by the non-breaching party is provided in the form of money. The non-breaching party may obtain a substitute with this money.
No distinction is made in awarding damages based on the manner of breach.
The goal for contractual remedies is compensation not punishment.
expectation damages: putting the victim in the position that he or she would have been if the contract occurred
equitable remedies: Remedies that courts later in time introduced to alleviate some of the harshness of strict application of legal rule
Rule from Hadley and Baxendale: Can’t compensate for losses that wasn’t reasonably foreseeable at the time the contract was made.
Compensatory: The bargain will be enforced putting you in a position that you would have been in. The plaintiff is responsible for effecting judgement. Substitutional behaviour
Coercive: Specific, like a landowner holding out to keep you from a subdivsion. Holding parties to their contractual promises, either: specific performance or injunction.
Judicial Theory of Remedies
‘The duty to keep a K means nothing more than you must pay damages for a breach “--> J Holmes
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