By Robert Ribeiro
This useful record units out a scientific method for assessing the treatments to be had for numerous forms of breach of agreement, what the treatments suggest by way of repayment and the way the reimbursement is calculated. It examines the latest case legislations in addition to vintage prior instances and explores the problems concerned; specifically the defenses.The record presents a number of examples of potent drafting of phrases controlling and proscribing remedies--as good as illustrating the kind of negative drafting to be shunned. Plus worthwhile tables, figures and calculations and a seek research of the mathematical and monetary implications of presented damages.
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Extra resources for Damages and Other Remedies for Breach of Commercial Contracts (Thorogood Report)
In Hayes v Dodd (1990), the couple who were claiming damages for incorrect advice in relation to the purchase of a maisonette and workshop had to deal with the argument that they had increased their loss by not mitigating. In particular the rent in relation to the lease of the workshop was higher than it might have been if the properties had been sold separately. In the Court of Appeal this point was considered, and it was accepted that with hindsight the couple had at first 35 CHAPTER 2: THE MEASUREMENT OF DAMAGES taken the wrong course of action in trying to sell both properties together.
In the recent case of Pegler v Wang (2000),these principles were followed,when it was held that loss of profits can fall within either rule, and to exclude ‘consequential’ losses does not exclude normal losses. Here the clause drafted for Wang excluded ‘indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits or data’. The clause did not exclude normal loss of profit. We also take a further look at the mathematical adjustments that have to be made to take account of certain economic factors that may be relevant to the claim.
The court did not accept this argument, and held that it was not the fault of the claimant that he was put into a position in which he had to buy a new machine before he had intended to do so. It was not likely that a half used item of this kind could be purchased on the open market, so the only form of restitution was to award the cost of purchasing a new item. The principles of the above cases were repeated in the case of Dominian Mosaics & Tile Co. Ltd v Trafalgar Trucking Co Ltd (1989) The Times, March 3 1989.