18. Remedies III: other non-compensatory or exceptional remedies

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines non-compensatory remedies for breach of contract. It analyses why a non-compensatory remedy can be desirable and discusses the four types of non-compensatory remedies. These include restitution for total failure of basis, forfeiture of deposits, negotiation damages (or the user principle), disgorgement, and punitive damages.

11. Undue influence

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines undue influence in a contract, which is a vitiating factor and also a ground of restitution. It explains that undue influence is hard to define and can more easily be recognised when found than exhaustively analysed in the abstract. This chapter investigates how undue influence is proved by means of a rebuttable presumption based on a relationship of trust and confidence coupled with a transaction that calls for an explanation, and how the resulting presumption is rebutted. It then covers the remedy of rescission for undue influence. Finally it explores undue influence in three party cases, where relief depends on whether the contracting party had notice, actual or constructive, of the undue influence and whether it had taken reasonable steps.

9. Misrepresentation and non-disclosure

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines issues related to pre-contractual misrepresentation, which is a vitiating factor. It explains what counts as an actionable misrepresentation and discusses its distinction with the treatment of non-disclosure. It explores the elements for an actionable misrepresentation and the test of cause/reliance. It considers the remedies for misrepresentation, namely rescission which involves setting the contract aside and restoring the parties to the pre-contractual position, and damages, which are available at common law for fraudulent misrepresentation and under the Misrepresentation Act 1967 for other misrepresentations unless the misrepresentor can discharge the burden of reasonable grounds for belief. This chapter also explains that any clause that purports to exclude or restrict liability for misrepresentation is subject to the statutory requirement of reasonableness.

7. Terms of the contract I

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines issues related to the terms of the contract. It explains the distinction between terms and mere representations, and analyses the difference between signed and unsigned contracts in relation to the incorporation of express terms, including the L’Estrange v Graucob case. This chapter also considers the parol evidence rule and the modern contextual approach to contractual interpretation. Finally it considers implied terms, which can be implied by statute or by the courts, including the difference between implied terms in fact and at law, and introduces the developing concept of a relational cotnract.

4. Certainty

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the certainty requirement in contractual formation and discusses the factors that influence the courts in deciding whether an agreement possesses the requisite degree of certainty, in the context of issues such as agreements to agree, agreements to negotiate in good faith, and agreements to use reasonable or best endeavours to negotiate or agree.

17. Remedies II: specific remedies

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines specific remedies for breach of contract. It explains that unlike compensatory remedies, specific remedies actually require the defendant to perform his side of the bargain. This chapter discusses the principles of the different types of specific remedies including the action for an agreed sum, liquidated damages and the penalty clause jurisdiction, injunctions, specific performance, and damages in substitution.

16. Remedies I: compensatory damages

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on compensatory damages, the principal remedy for breach of contract, and explores the actionable types of loss. It deals with the various measures of damages, how they are quantified, and discusses the circumstances in which the claimant can recover for non-financial loss. It explores principles of causation and the remoteness of damage test for breach of contract, the requirement of mitigation and the defence of contributory negligence.

14. Frustration

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the doctrine of frustration, which can only be invoked where the parties have not allocated the risk of the relevant event in their bargain, such as by means of a force majeure clause. It explains that issues of frustration arise where circumstances change radically after the contract has been entered into, which show that an assumption held by both parties at the time of contracting no longer applies. It analyses the effects of frustration at common law and discusses the current test for frustration. This chapter also considers the provisions of the Law Reform (Frustrated Contracts) Act 1943.

8. Terms of the contract II: common law and statutory controls on unfair terms

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines potentially unfair terms, including exemption clauses, in a contract. It considers the common law’s response to exemption clauses and other potentially unfair terms, and discusses statutory schemes to regulate them. It covers the Unfair Contract Terms Act 1977 (UCTA) which governs exemption clauses in non-consumer contracts, subjecting them to a requirement of reasonableness where the contract was made on standard terms. It also discusses in detail the Consumer Rights Act 2015 (CRA), which imposes a test of fairness on terms in consumer contracts, apart from the core terms.

6. Privity

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.