Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0009
A. Burrows
The term ‘reliance interest’ was coined by Fuller and Perdue, whose classic article ‘The Reliance Interest in Contract Damages’ first clarified and explored the different possible objectives of damages for breach of contract. The aim of damages protecting the reliance interest is, according to Fuller and Perdue, ‘… to put the plaintiff in as good a position as he was in before the promise was made’. This can alternatively and preferably be expressed as aiming to put the claimant into as good a position as she would have been in if no contract had been made.
{"title":"Contractual reliance damages","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0009","url":null,"abstract":"The term ‘reliance interest’ was coined by Fuller and Perdue, whose classic article ‘The Reliance Interest in Contract Damages’ first clarified and explored the different possible objectives of damages for breach of contract. The aim of damages protecting the reliance interest is, according to Fuller and Perdue, ‘… to put the plaintiff in as good a position as he was in before the promise was made’. This can alternatively and preferably be expressed as aiming to put the claimant into as good a position as she would have been in if no contract had been made.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115672560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0011
A. Burrows
The compensatory aims require the courts to assess not only the position the claimant would have been in if the breach of contract or tort had not been committed but also its actual position as a result of the tort or breach of contract, so that damages can make up the difference. Where the claimant’s actual position has been, or will be, improved by benefits acquired subsequent to and as a result of the tort or breach of contract, one might expect (in accordance with the compensatory aims) that such benefits would be taken into account—if they are ignored the claimant will be left in a better position than if the contract had been performed or if no tort had been committed. In a nutshell, one might expect ‘compensating advantages’ to be deducted or, as it is sometimes alternatively expressed, that losses mitigated would not be compensated. But in fact compensating advantages are often not deducted. Our concern here is to indicate when this is so.
{"title":"Compensating advantages","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0011","url":null,"abstract":"The compensatory aims require the courts to assess not only the position the claimant would have been in if the breach of contract or tort had not been committed but also its actual position as a result of the tort or breach of contract, so that damages can make up the difference. Where the claimant’s actual position has been, or will be, improved by benefits acquired subsequent to and as a result of the tort or breach of contract, one might expect (in accordance with the compensatory aims) that such benefits would be taken into account—if they are ignored the claimant will be left in a better position than if the contract had been performed or if no tort had been committed. In a nutshell, one might expect ‘compensating advantages’ to be deducted or, as it is sometimes alternatively expressed, that losses mitigated would not be compensated. But in fact compensating advantages are often not deducted. Our concern here is to indicate when this is so.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134324093","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0016
A. Burrows
At common law no action could be brought for loss suffered through the killing of another. But this was altered by the Fatal Accidents Acts 1846–1959, now the Fatal Accidents Act 1976 (FAA 1976) (as amended by the Administration of Justice Act 1982, s 3) which gives a statutory action ‘… if death is caused by any wrongful act, neglect or default …’ Most such statutory actions are founded on a tort by the defendant but the basis may be breach of contract.
{"title":"Losses on death","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0016","url":null,"abstract":"At common law no action could be brought for loss suffered through the killing of another. But this was altered by the Fatal Accidents Acts 1846–1959, now the Fatal Accidents Act 1976 (FAA 1976) (as amended by the Administration of Justice Act 1982, s 3) which gives a statutory action ‘… if death is caused by any wrongful act, neglect or default …’ Most such statutory actions are founded on a tort by the defendant but the basis may be breach of contract.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114449892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0031
A. Burrows
This is the appropriate remedy for the claimant to recover its goods where the defendant is tortiously ‘interfering’ with them under the Torts (Interference with Goods) Act 1977. By the remedy the defendant is ordered to deliver the goods to, or to allow them to be taken by, the claimant. Delivery up therefore belongs alongside the mandatory restorative injunction as a remedy concerned to compel the undoing of a wrong.
{"title":"Delivery up","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0031","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0031","url":null,"abstract":"This is the appropriate remedy for the claimant to recover its goods where the defendant is tortiously ‘interfering’ with them under the Torts (Interference with Goods) Act 1977. By the remedy the defendant is ordered to deliver the goods to, or to allow them to be taken by, the claimant. Delivery up therefore belongs alongside the mandatory restorative injunction as a remedy concerned to compel the undoing of a wrong.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125681898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0035
A. Burrows
Torts and breach of contract are termed common law wrongs because they were historically developed in the common law courts. Equitable wrongs are civil wrongs that historically were developed in the Court of Chancery. Despite the fusion of the common law courts and the Court of Chancery by the Supreme Court of Judicature Acts 1873–1875, much of the substantive law has not been fused. One example is the continued distinction between common law and equitable wrongs. In a rational fused system, nothing should turn on whether a civil wrong is common law or equitable. But that is not the present law.
{"title":"Remedies for equitable wrongs","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0035","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0035","url":null,"abstract":"Torts and breach of contract are termed common law wrongs because they were historically developed in the common law courts. Equitable wrongs are civil wrongs that historically were developed in the Court of Chancery. Despite the fusion of the common law courts and the Court of Chancery by the Supreme Court of Judicature Acts 1873–1875, much of the substantive law has not been fused. One example is the continued distinction between common law and equitable wrongs. In a rational fused system, nothing should turn on whether a civil wrong is common law or equitable. But that is not the present law.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127715601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0017
A. Burrows
Loss of reputation is a non-pecuniary loss, which is traditionally regarded as distinct from mental distress in that it deals with society’s feelings towards the claimant, rather than with the claimant’s own feelings. But often mental distress consequent on loss of reputation is not clearly separated from the award for loss of reputation itself. Indeed on an alternative view, alternative to that traditionally taken by the courts, all non-pecuniary loss, including loss of reputation, is ultimately regarded as a loss only in terms of the distress or loss of happiness caused to the claimant. However, where a claimant complains of a loss of reputation she is generally concerned not only about loss of reputation itself, but also and often primarily about the pecuniary loss flowing from it and both will be considered.
{"title":"Loss of reputation","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0017","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0017","url":null,"abstract":"Loss of reputation is a non-pecuniary loss, which is traditionally regarded as distinct from mental distress in that it deals with society’s feelings towards the claimant, rather than with the claimant’s own feelings. But often mental distress consequent on loss of reputation is not clearly separated from the award for loss of reputation itself. Indeed on an alternative view, alternative to that traditionally taken by the courts, all non-pecuniary loss, including loss of reputation, is ultimately regarded as a loss only in terms of the distress or loss of happiness caused to the claimant. However, where a claimant complains of a loss of reputation she is generally concerned not only about loss of reputation itself, but also and often primarily about the pecuniary loss flowing from it and both will be considered.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129859964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0033
A. Burrows
Many torts are actionable only on proof of damage. But torts actionable per se, as well as breach of contract, are actionable without proof of damage. One consequence is that even though the court is satisfied that the claimant has not suffered any damage, it is still entitled to damages for the defendant’s breach of contract or tort actionable per se. Such damages are termed nominal and they comprise a trivial sum of money, usually about £2–£10. Nominal damages are therefore in no sense compensatory and must be distinguished from a small sum of compensatory damages. Their function is merely to declare that the defendant has committed a wrong against the claimant and hence that the claimant’s rights have been infringed. Given that the remedy of a declaration is specifically designed to serve this purpose, nominal damages are superfluous and could happily be abolished. This is particularly so since what was previously an important practical consequence of an award of nominal damages has been removed by Devlin J’s decision in Anglo-Cyprian Trade Agencies v Paphos Wine Industries Ltd that a claimant awarded nominal damages should not necessarily be regarded as a successful claimant for the purposes of costs.
{"title":"Nominal and contemptuous damages and declarations","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0033","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0033","url":null,"abstract":"Many torts are actionable only on proof of damage. But torts actionable per se, as well as breach of contract, are actionable without proof of damage. One consequence is that even though the court is satisfied that the claimant has not suffered any damage, it is still entitled to damages for the defendant’s breach of contract or tort actionable per se. Such damages are termed nominal and they comprise a trivial sum of money, usually about £2–£10. Nominal damages are therefore in no sense compensatory and must be distinguished from a small sum of compensatory damages. Their function is merely to declare that the defendant has committed a wrong against the claimant and hence that the claimant’s rights have been infringed. Given that the remedy of a declaration is specifically designed to serve this purpose, nominal damages are superfluous and could happily be abolished. This is particularly so since what was previously an important practical consequence of an award of nominal damages has been removed by Devlin J’s decision in Anglo-Cyprian Trade Agencies v Paphos Wine Industries Ltd that a claimant awarded nominal damages should not necessarily be regarded as a successful claimant for the purposes of costs.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130066867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/OSO/9780198705932.003.0010
A. Burrows
There can be said to be five principles limiting compensatory damages (ie which reduce the damages that full adherence to the compensatory aims would dictate) for both torts and breach of contract, and the role played by each can be briefly described as follows: The principal tests for remoteness centre on reasonable foreseeability or contemplation of the loss.
{"title":"Principles limiting compensatory damages","authors":"A. Burrows","doi":"10.1093/OSO/9780198705932.003.0010","DOIUrl":"https://doi.org/10.1093/OSO/9780198705932.003.0010","url":null,"abstract":"There can be said to be five principles limiting compensatory damages (ie which reduce the damages that full adherence to the compensatory aims would dictate) for both torts and breach of contract, and the role played by each can be briefly described as follows: The principal tests for remoteness centre on reasonable foreseeability or contemplation of the loss.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126832780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0020
A. Burrows
The law on interest in English law is a tangled web. This is principally because the common law traditionally set itself against awards of interest and this has resulted in the piecemeal intervention of statutes which allow the award of interest in specific situations. In the leading modern case of Sempra Metals Ltd v IRC the House of Lords reformed the common law as regards awards of interest as compensatory damages for a tort or breach of contract (although the part of the decision that was concerned with interest as restitution of an unjust enrichment, which was the direct claim in question, was overruled by the Supreme Court in Prudential Assurance Co Ltd v HMRC). Sempra Metals was concerned with an award of compound interest (as damages or as restitution) which contrasts with the relevant statutes which allow awards of simple interest only.
英国法中的利益法是一张错综复杂的网。这主要是因为普通法传统上反对利益裁决，这导致成文法零零碎碎地介入，允许在特定情况下裁决利益。在现代的主要案例Sempra Metals Ltd v IRC中，上议院改革了普通法，将利息作为侵权行为或违约的补偿性损害赔偿(尽管判决中有关利息作为不正当利益的返还的部分，即所讨论的直接索赔，在保诚保险有限公司诉英国税务海关总署案中被最高法院驳回)。Sempra Metals涉及的是复利赔偿(作为损害赔偿或赔偿)，这与只允许单利赔偿的相关法规形成对比。
{"title":"Interest as damages and interest on damages","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0020","url":null,"abstract":"The law on interest in English law is a tangled web. This is principally because the common law traditionally set itself against awards of interest and this has resulted in the piecemeal intervention of statutes which allow the award of interest in specific situations. In the leading modern case of Sempra Metals Ltd v IRC the House of Lords reformed the common law as regards awards of interest as compensatory damages for a tort or breach of contract (although the part of the decision that was concerned with interest as restitution of an unjust enrichment, which was the direct claim in question, was overruled by the Supreme Court in Prudential Assurance Co Ltd v HMRC). Sempra Metals was concerned with an award of compound interest (as damages or as restitution) which contrasts with the relevant statutes which allow awards of simple interest only.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133612207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0007
A. Burrows
A requirement that can be regarded as inherent in the compensatory aims is that the defendant’s tort or breach of contract has been a cause of the claimant’s loss. So the words, ‘… as if the tort or breach of contract had not been committed’ correlate to the usual ‘but for’ or sine qua non test of factual causation; that is, the claimant must establish that but for the tort or breach of contract she would not have suffered the loss.
{"title":"Factual causation","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0007","url":null,"abstract":"A requirement that can be regarded as inherent in the compensatory aims is that the defendant’s tort or breach of contract has been a cause of the claimant’s loss. So the words, ‘… as if the tort or breach of contract had not been committed’ correlate to the usual ‘but for’ or sine qua non test of factual causation; that is, the claimant must establish that but for the tort or breach of contract she would not have suffered the loss.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121518406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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