General The law on damages is almost entirely judge made. There is very little statutory law which is of relevance. Accordingly, the principles are found in various cases. The principles on which damages are assessed and awarded have evolved over time. In civil claims, damages which are monetary compensation for loss or injury are the principal remedy. The law does […]
General The law on damages is almost entirely judge made. There is very little statutory law which is of relevance. Accordingly, the principles are found in various cases. The principles on which damages are assessed and awarded have evolved over time. In civil claims, damages which are monetary compensation for loss or injury are the principal remedy. The law does […]
Exemplary/ Punitive Damages The law of torts is not about punishment but about compensation. Punitive or exemplary damages arising from the nature of the wrong are intended to mark the court’s disapproval of the defendant’s conduct in the circumstances. They are awarded only exceptionally. Punitive and exemplary damages are largely synonymous, although there are some inconsistencies in the use of […]
The Law Upholds Bargains An award of damages is the primary remedy for breach of contract. The basic principle of contract damages, is that a person who suffers loss by reason of a breach of contract, is entitled to compensation in money, in so far as money can do so, to place him in the same position and situation in […]
Causation and Remoteness The key principle of the law of damages /compensation is that the claimant should be put into the position in which he would have been, but for the breach in so far as money can so do. This is limited by the requirement for causation and the principles of remoteness. Causation covers causation in fact as adapted by […]
Overview of Mitigation A party must take reasonable steps to mitigate his loss arising from the other party’s wrong or breach of contract. He may not recover damages for a loss which he suffers, which he could have avoided by taking reasonable action. A person who has suffered a breach of contract, cannot delay and simply expect the defendant to […]
Liquidated Damages v Penalty The parties to a contract may pre-agree the level of damages or compensation, payable in the event of a breach. Pre-agreed damages are described as liquidated damages. It is a basic principle that pre-agreed liquidated damages must not amount to a penalty. They must compensate only and may not be pitched at such a level that […]
Overview of Mitigation A party must take reasonable steps to mitigate his loss arising from another party’s wrong. He may not recover damages for a loss which he suffers, which he could have avoided by taking reasonable action. A person who has suffered a civil wrong , cannot delay and simply expect the defendant to cover all his cost. He […]
Background Historically, there existed legal forms of action where goods were sold or services were provided without a contract / agreed price. Quantum Meruit applied when services were provided without an agreed price. Quantum Valebat applied where goods were sold without an agreed price. Another long-standing form of claim was based on money had and received by the defendant. It […]
General The law on restitution is not fully coherent. Certain circumstances are well established as raising an entitlement to restitution. Most are based on unjust enrichment. The courts have sought to evolve coherent principles of unjust enrichment in recent times. See the section on unjust enrichment. Restitutionary remedies also arise outside unjust enrichment. Proprietary remedies such as tracing, constructive trusts […]
Overview Where a payment is made on the basis of an assumption, which later turns out to be incorrect, there may be a right of restitution or recovery. Most commonly, the failed assumption or expectation will involve a proposed contract. If monies are paid in the expectation that a contract will materialise, but this does not ultimately happen, there will […]
Recovering Assets Where an asset is wrongly taken, it is recoverable under the law of conversion and detinue. These civil wrongs/ torts protects the property rights of the owner. This is not restitution in the strict sense. The right to recover the asset is a property right which holds good against all third parties, other than those who have a […]
Overview Subrogation is an equitable principle (and remedy) which arises where a person has conferred a benefit on another in circumstances where that person has received an unjust enrichment. It most commonly creates an entitlement by operation of law, for a party who discharges another’s debt or obligations, to enforce the rights and interests held by a third person in respect […]
General Limits to Recovery There are limits to recovery under principles of restitution. Where there is a contract, restitution usually has no application. The fundamental breach of the contract may permit the innocent party to choose to set it aside. When this is done, restitutionary remedies may be available. Restitution may be avoided by a contract to the contrary. A […]
Remedies in Restitution Unjust enrichment is not a single area of law. Contract law and tort may afford remedies against unjust enrichment. Recourse against unjust enrichment may be afforded through the law of property, where assets are reclaimed. Damages by way of compensation for breach of contract or tort may also include elements of restitution. Remedies in restitution may be, […]
Invalidating Duress Duress covers a range of types of pressure and influence. It may range ranging from threats or actual direct unlawful violence to the application of other, less direct unlawful pressures. Duress involving the threat of personal violence clearly negates consent and contracts thereby entered. There may be criminal liability. There may be duress against goods. It may arise, […]
Overview The principle of failed expectations applies both to payments received and to works done by the persons whose expectations have failed. Failed expectations may occur in a contractual or non-contractual context. There may or may not have been an expectation of a contract. In the case of payments made, monies are recoverable by way of monies had and received on […]
Total Failure of Consideration The right to restitution, whether by quantum meruit (the appropriate or reasonable amount) or quantum valebat (the value) or by way of monies had and received, may arise where there has been a “total failure of consideration”. This is the technical description, of what might be better described as a total failure of performance. Where one […]
Overview “Free” or voluntary acceptance, in effect, allows restitution where it would be unreasonable to allow a person to retain goods or a benefit accepted or enjoyed without paying or undertaking the corresponding liability. It is presumed unjust that there should be no payment or reimbursement where there is free acceptance. Where goods, benefits or services are freely given and […]
Limited Powers Traditionally, a company was limited by its objects. Companies legislation has removed the ultra vires rule for most companies as and from December 2016. Dedicated Activity Companies remain subject to the rules. There were (and remain for DACs) significant exceptions and protections for third parties dealing with the company. The protections have been updated and restated for DACs. […]