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Measuring Damages in the Law of Obligations

The Search for Harmonised Principles

By: Sirko Harder
Media of Measuring Damages in the Law of Obligations
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Published: 12-07-2010
Format: PDF eBook (?)
Edition: 1st
Extent: 330
ISBN: 9781847315908
Imprint: Hart Publishing
RRP: £76.50
Online price : £61.20
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About Measuring Damages in the Law of Obligations

This book challenges certain differences between contract, tort and equity in relation to the measure (in a broad sense) of damages. Damages are defined as the monetary award made by a court in consequence of a breach of contract, a tort or an equitable wrong. In all these causes of action, damages usually aim to put the claimant into the position the claimant would be in without the wrong. Even though the main objective of damages is thus the same for each cause of action, their measure is not.

While some aspects of the measure of damages are more or less harmonised between contract, tort and equity (e.g. causation in fact and mitigation), significant differences exist in relation to

(1) remoteness of damage, which is the question of whether, when and to which degree damage needs to be foreseeable to be recoverable;
(2) the compensability of non-pecuniary loss such as pain and suffering, distress and loss of reputation;
(3) the effect of contributory negligence, which is the victim's contribution to the occurrence of the wrong or the ensuing loss through unreasonable conduct prior to the wrong;
(4) the circumstances under which victims of wrongs can claim the gain the wrongdoer has made from the wrong; and
(5) the availability and scope of exemplary (or punitive) damages.

For each of the five topics, this book examines the present position in contract, tort and equity and establishes the differences between the three areas. It goes on to scrutinise the arguments in defence of existing differences. The conclusion on each topic is that the present differences between contract, tort and equity cannot be justified on merits and should be removed through a harmonisation of the relevant principles.

Table Of Contents

1: Introduction
I The Law of Obligations
II The Law of Damages
III Desirability of a Harmonised Measure of Damages
IV Possibility of a Harmonised Measure of Damages
V The Methodology Adopted in this Book
Part 1: Remoteness of Damage
2: The Present Remoteness Test in Tort
I Terminology
II The Foreseeability Criterion in Negligence
III Damage Versus Risk
IV Degree of Foresight Required
V The'Thin Skull' Rule
VI The 'Scope of the Duty' Concept
VII Torts other than Negligence
3: The Present Remoteness Test in Contract
I Hadley v Baxendale
II Victoria Laundry
III The Heron II
IV Parsons
VI Brown v KMR Services Ltd
VII Jackson v Royal Bank of Scotland plc
VIII The Achilleas
IX Conclusion
4: A Uniform Remoteness Test throughout the Common Law
I Contract and Tort Compared
II Reforming both Contract and Tort
III Reforming Tort Only
IV Aligning Contract with Tort
A The Fairness Argument
B The Efficiency Argument
C Objections to the Efficiency Argument
i Prohibitive Costs
ii Monopoly Situations
iii Strategic Dilemma for Reliable Carriers
iv Possibility of Menu
D Preventing Unreasonable Reliance upon Performance
E Contractual Liability is Generally Strict
F Conclusion
5: Remoteness of Damage in Equity
I Misapplication of Trust Property
II Breach of an Equitable Duty of Care and Skill
III Breach of Fiduciary Duty
Part 2: Non-Pecuniary Loss
6: Non-Pecuniary Loss in Tort
I Loss Resulting from Personal Injury
II Physical Inconvenience or Discomfort
III Loss of Reputation
IV Mental Distress
V Bereavement
7: Non-Pecuniary Loss in Contract
I Overview of the Present Law
II The General Bar to Compensation
III The Exception for Personal Injury
IV The Exception for Physical Inconvenience
V The'Object of the Contract' Exception
VI Loss of Reputation
VII Need for Reform
VIII Defensibility of the General Bar to Compensation
A Avoiding Punishment
B Avoiding Excessive Awards
C General Remoteness of Non-Pecuniary Loss
D Assumption of Risk
E Difficult Assessment
F Lower Cost of Contracting
G Avoiding a Flood of Claims
H Avoiding Bogus Claims
IX Way of Reform
8: Non-Pecuniary Loss in Equity
I BreachofConfidence in Its Core Meaning
II Breach of Confidence in Its Extended Meaning ('Breach of Privacy')
III Other Equitable Wrongs
Part 3: Contributory Negligence
9: Contributory Negligence in Tort
I The Position Apart From the1945 Act
II The Ambit of the 1945 Act
III Causation
IV The Claimant's Fault
V Damage
VI Apportionment
10: Contributory Negligence in Contract
I The Position apart from the 1945 Act
II The Impact of the 1945 Act-Overview
III Breach of a Duty of Care Co-Extensive in Contract and Tort
IV Breach of a Purely Contractual Duty of Care
V Strict Contractual Liability-The Present Law
VI Need for Apportionment in Cases of Strict Liability
A Resorting to Causation Doctrine
B Resorting to Remoteness Doctrine
C Resorting to Mitigation Doctrine
VII Defensibility of Denying Apportionment in Cases of Strict Liability
A No Duty to Supervise the Defendant
B Distribution of Blame is Difficult
C Uncertainty
D Inequalities of Bargaining Power
VIII Way of Reform
11: Contributory Negligence in Equity
Part 4: Gain-Based Relief
12: The Present Law of 'Restitution forWrongs'
I Terminology
II The Inclusion of Hypothetical-Fee Awards
III Equity
A Breach of Fiduciary Duty
B BreachofConfidence Including Breach of Privacy
IV Tort
A Historical Development
B Wrongful Interference with Goods
C Trespass to Land
D Intellectual Property Wrongs
E Nuisance
F Deceit and Fraud
V Contract
A Hypothetical-Fee Award ('Wrotham Park Damages')
B Account of Profits ('Blake Damages')
13: The Proper Scope of 'Restitution for Wrongs'
I Existing Theories
A Birks
B Edelman
C Friedmann
D Jackman
E Jaffey
F Tettenborn
G Weinrib
H Worthington
II The Significance of Exclusive Entitlements
III Exclusive Entitlements Erga Omnes
A Tangible and Intangible Property
B Bodily Integrity
C Reputation
D Informational Rights
IV Exclusive Entitlements Inter Partes
A Contractual Right to Have Property Transferred
i Land and Intangible Property
ii Specific Chattel
iii Generic Goods
B Contractual Right to Be Treated As the Owner of Certain Property
C Contractual Right to Someone Else's 'Labour Power'?
D Right to the Loyalty of One's Fiduciary
V Situations in Which 'Restitution for Wrongs' is Inappropriate
A Deceit
B Skimped Contractual Performance
VI Exclusive-Entitlement Theory and Present Law Compared
Part 5: Exemplary Damages
14: The Present Law of Exemplary Damages
I Terminology
II Rookes v Barnard
III Abuse of Power by Civil Servants
A Conduct Required
B Status of the Defendant
C Criticism
IV Profit-Seeking Behaviour
A Fields of Application
B Criticism
V Statutory Authorisation
VI The 'Cause of Action' Test
VII Exemplary Damages in Contract
VIII Exemplary Damages in Equity
IX Need for Reform
15: Objective of Exemplary Damages
I Penalising Reprehensible Behaviour
II Fostering Efficient Deterrence
A Correction for Undercompensation
B Correction for Underenforcement
C Correction for Court Errors
D Offsetting Illicit Benefits and Exceptional Costs
E Encouraging Negotiations about the Use of Rights
F Conclusion
16: Defensibility of Confining Exemplary Damages to Tort
I Defensibility of Banning Exemplary Damages from Contract
A Theory of Efficient Breach
B Objections to the Theory of Efficient Breach
C Relevance of the Theory of Efficient Breach
D Inducement of Breach
E Cost of Contracting
F Crucial Differences between Contract and Tort
G Conclusion
II Defensibility of Banning Exemplary Damages from Equity
A Is Punishment a Traditional Objective of Equity?
B Should Exemplary Damages be Available in Equity?
17: The Abolition or Retention of Exemplary Damages
I The Division between Civil Law and Criminal Law
A Attack on Exemplary Damages
B Defence of Exemplary Damages
C Conclusion
II Policy Arguments against Exemplary Damages
A Uncertainty as to Availability and Amount
B Ineffectiveness of Predictable Awards
C Incentive for Bogus Claims
III Policy Arguments in Favour of Exemplary Damages
A Appeasing the Victim
B Possibility of Vicarious Liability
IV Need for Exemplary Damages
A The Long-Standing Practice of Exemplary Awards
B The Law Commission's Ten Examples
C Comparative View
V Conclusion
18: Conclusion

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