Author: Qi Zhou Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
The remedy of damages for repudiation modifies not only the parties' behaviour after the contract is repudiated (ex post behaviour), but also their behaviour in making and performing the contract (ex ante behaviour). In this paper, a law-and-economics approach is adopted to analyse the House of Lords' majority decision in Golden Victory, arguing that this decision is economically justified because: (1) it encourages the parties to solve the uncertainty of measuring damages; (2) it enforces the parties' contractual allocation of risks; and (3) it encourages the early disclosure of the intention to breach. This paper differs from the existing literature in two ways. First, rather than examining the impact of Golden Victory on ex post behaviour, it focuses on ex ante behaviour. Secondly, unlike most existing literature, which criticises the Lords' decision, this paper supports it from a law-and-economics perspective.
Author: Sirko Harder Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
Many contracts provide for a right of one or all parties to terminate the contract either at any time or under certain conditions. Long-term contracts such as leases and employment contracts often provide for either party's right to terminate the contract by giving notice. Where a contracting party exercises a right to terminate the contract, neither party has a claim with regard to future performance. Where a contracting party purports to terminate the contract without fulfilling the conditions under which termination is allowed (e.g. without giving the notice prescribed), the purported termination is a wrongful repudiation of the contract. An acceptance of the repudiation by the other party does relieve both parties from future performance, but the aggrieved party may then claim damages for non-performance of the repudiating party's future obligations. Damages are then assessed to put the aggrieved party in the same situation as if the repudiation had not occurred. It is settled law that the only damages the aggrieved party is entitled to are the difference between the cost incurred through wrongful repudiation and the cost that would have been incurred had the contract been lawfully terminated. Therefore, repudiating parties are exculpated by a right to terminate the contract. This article discusses three main aspects of this rule. Firstly, for the purpose of determining the damages recoverable, the hypothetical notice period starts to run with the repudiation rather than its acceptance. Secondly, this article shows that a right to terminate which was, at the time of the repudiation, unavailable and even uncertain to arise in future but which the court now knows would have arisen absent the repudiation, exculpates the repudiating party, at least where the right to terminate would have arisen before the aggrieved party incurred the loss in question. Finally, this article suggests chat the mere availability of a right to terminate the contract is alone insufficient to exonerate the repudiating parry. It is further necessary that the repudiating party would actually have exercised that right absent the repudiation. However, the burden of proof should lie with the aggrieved party. It should be for the aggrieved party to prove that the repudiating party would never have lawfully terminated the contract.
Author: Graham Virgo Publisher: Cambridge University Press ISBN: 1316764559 Category : Law Languages : en Pages : 625
Book Description
The law of commercial remedies raises a number of important doctrinal, theoretical and practical controversies which deserve sustained and rigorous examination. This volume explores such controversies and suggests solutions, which is essential to ensure that the law is defensible, clear and just. With contributions from twenty-three leading academic and practitioner experts, this book addresses significant issues in the law which, taken together, range across the entire remedial jurisdiction as it applies to commercial disputes. The book primarily focuses on the resolution of controversies in the English law of commercial remedies, but recent developments elsewhere are also considered, especially in other common law jurisdictions. The result provides remarkably comprehensive coverage of the field which will be of relevance to academics, students, judges and practitioners.
Author: Victor P. Goldberg Publisher: Edward Elgar Publishing ISBN: 1789902517 Category : Law Languages : en Pages : 288
Book Description
In this series of chapters on contract damages issues, Victor P. Goldberg provides a framework for analyzing the problems that arise when determining damages, and applies it to case law in both the USA and the UK.
Author: John E. Stannard Publisher: Oxford University Press, USA ISBN: 9780199695973 Category : Breach of contract Languages : en Pages : 0
Book Description
Providing a comprehensive and detailed treatment of termination as a remedy for breach of contract, this book gives a current account of the law and explains this complex area in a practical context. The book is divided into four parts. The first section sets out to analyse what is involved in termination and looks at some of the difficulties surrounding the topic, before going on to explain the evolution of the present law and its main principles. The second section provides a thorough analysis of the two key topics of breach and termination. Breach is defined in terms of a failure, without good excuse, to perform an obligation under the contract, and the various aspects of this definition are explained in the light of the relevant authorities. In the following chapter in the section, termination is defined in terms of an election by the promisee, in consequence of a breach by the promisor, to claim discharge from his or her own primary obligations under the contract. This process, which can also be seen as a major contractual remedy in its own right, is distinguished from other processes with which it has a close relationship, most notably the right to withhold performance and discharge under the doctrine of frustration. The third section addresses the question when the right to terminate for breach arises. The law gives two answers to this question - when the term broken is classified as a 'condition' or when a 'fundamental' breach has occurred. The nature of a 'condition' in this sense is explained, and the criteria for identifying when a term should be classified as such is set out. Similarly, the criteria for identifying a fundamental breach is discussed, as is the difficult relationship between the concepts of fundamental breach and repudiation and the doctrine of anticipatory breach. The fourth and final section considers the consequences of the promisee's election whether to terminate or not. In this section the legal effects of termination with regard to the obligations and remedies available to the promisee and the promisor, and also its effect on the application of other terms in the contract such as exemption clauses, are analysed. The measure of damages available to the promisee following termination, most notably damages 'on the footing of repudiation' or damages for 'loss of the bargain' is also considered here alongside other general principles governing damages in this context. The final chapter examines the legal consequences of affirmation, once again both with regard to the promisee and the promisor, with particular emphasis on the extent of the promisee's right to enforce the performance of the contract by way of an action for an agreed sum or an action for specific performance.
Author: Qi Zhou
Author: C. Carr
Author: Stephen Dunham
Author: Sirko Harder
Author: Jack Dean Heysinger
Author: Graham Virgo
Author: Victor P. Goldberg
Author: John E. Stannard
Author: Glen Banks
Author: American Law Institute