Research Handbook on Remedies in Private Law
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Research Handbook on Remedies in Private Law

Edited by Roger Halson and David Campbell

This Research Handbook comprehensively and authoritatively reviews the contemporary challenges in research regarding remedies in private law. The Research Handbook on Remedies in Private Law focuses on the most important issues throughout contract, equity, restitution and tort law as they have arisen in the major common law jurisdictions, touching upon those of other jurisdictions where pertinent.
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Chapter 8: Two conceptions of the performance interest in contract damages

David Winterton

Abstract

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.

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