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  • Series: Research Handbooks in Private and Commercial Law series x
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Edited by Roger Halson and David Campbell

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Edited by Roger Halson and David Campbell

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Steve Hedley

What is the relation between legal remedies and the substantive law which these remedies implement? And how are the various legal remedies to be classified? These questions have received very different answers from different legal thinkers, reflecting rather different philosophies. Those with a relatively clear conception of the rights the law protects will typically have very definite ideas about what those remedies should consist of, reflecting the content of the rights themselves. Others, with less confidence in the substantive law’s ability to definitively state which cases call for a remedy, will rely to a greater extent on (implicitly or explicitly) discretionary concepts to facilitate the court in responding appropriately to whatever has occurred. In these and other respects, arguments over remedies often reflect subtle disagreements over the limits and purposes of the substantive law.

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Stephen Waddams

The chapter deals with the following topics: the primacy of money remedies, the basic measure of damages, remoteness, a comparison with wrongs other than breach of contract, and gain-based remedies.

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Paul Mitchell

This chapter proposes that illuminating general insights into the history of tort remedies from the end of the nineteenth century to the present day can be obtained by paying attention to three interrelated and overarching themes. The first is the role of history in shaping, constraining, defining and - occasionally - suppressing modern developments in tort remedies. The second is the extraordinary significance of legal categories at multiple levels, ranging from the distinctions between different heads of damages to the distinctions between different torts and, ultimately, between tort and non-tort. These categories, the chapter emphasises, are not mere convenient repositories for organising information, they have invited and encouraged distinctive patterns of legal development. The third theme is the unresolved and ongoing conflict between tort law’s formal aspiration to rationalism and the instinctive attractions of certain kinds of irrationalism.

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Annette Morris

This chapter highlights the importance of civil justice policy to understanding tort as a system of personal injury compensation. As tortious legal principles are mediated through the civil justice system in practice, civil justice policy has a significant impact on the extent to which the injured are able and willing to seek tort compensation and what they, both individually and collectively, are able to achieve through the pursuit of tort actions. Whilst the civil justice system in England and Wales traditionally purported to achieve substantive justice, a desire to reduce the cost of resolving claims and increase efficiency means it now focuses on delivering proportionate justice. This chapter explains what this reveals about current attitudes towards: the appropriate scope, nature and role of tort law in society; the value it brings to injured individuals and broader society and the government’s responsibility towards its administration.

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Catherine Mitchell

This chapter explores what we know, and what it might be useful to know, about the connection between contract law remedies for breach and commercial reality. It considers three different perspectives on commercial reality: empirical studies of contract; the relational theory of contract; contract law remedies as default rules. The chapter draws out the insights that each perspective presents on legal remedies for breach, highlights the areas where contract remedies appear to deviate from these conceptions of commercial reality, and notes potential areas for further research. One of these areas for future research is whether, in the light of the increasing use of contracts to create essentially private legal systems with bespoke and complex remedial regimes which courts are willing to enforce, the legal default remedies for breach of contract are becoming obsolete.

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David McLauchlan

This chapter discusses some contentious issues relating to the recovery of so-called ‘reliance damages’ in an action for breach of contract. Does the commonly expressed ‘presumption of recoupment’ relating to expenditure incurred by the claimant in performing, or preparing to perform, the contract impose the full legal burden or merely an evidential burden on the defendant of proving that the expenditure would not have been recovered? Assuming that the former is correct, should the ability of the defendant to rebut the presumption be affected by the existence of foreseeable consequential benefits that the claimant expected or hoped to gain from performance of the contract? Does the presumption extend to all types of expenditure incurred in reliance on the contract? Should account be taken of contingencies that, if they had eventuated, would have enabled the defendant to escape or reduce liability in damages? And are damages for both wasted expenditure and loss profits recoverable in a case where the claimant is able to establish that performance by the defendant would have resulted in a net gain.

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Peter Jaffey

Restitution is generally understood as the return of a payment or transfer, or more broadly the removal of a benefit from the defendant. In modern times, restitution has come to be understood as a remedy for unjust enrichment and the law of restitution has become closely associated with or even equated with the law of unjust enrichment. This has heavily influenced how restitution is understood and when it is available, and it has involved re-interpreting parts of the common law. This chapter considers what is meant by restitution and outlines and criticises the unjust enrichment approach to restitution. In particular, it considers the role of unjust enrichment in contractual and property contexts and whether the claim for restitution in these contexts is not more fruitfully understood purely as a remedy in contract law or property law rather than unjust enrichment. It also considers and criticises the category of ‘restitution for wrongs’.

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David Winterton

In recent years a number of distinct ‘substitutionary’ accounts of contract damages have emerged in opposition to the conventional, exclusively ‘loss-centred’ view. It is understandably common to group these accounts together as they share a concern with directly enforcing the promisee’s primary right to performance. This chapter nevertheless argues that it is important to draw a distinction between ‘substitutionary’ accounts that are concerned with placing an objective value on the performance denied by the relevant breach and those that are concerned with awarding the promisee that sum of money necessary to obtain substitute performance from elsewhere. The distinction between these approaches is easily overlooked because of the many cases in which they produce the same quantum. The distinction is nonetheless significant, not only due to the significant differences in quantum that may emerge, but also because of the distinct grounds upon which such awards may legitimately be restricted.