"There Is Now Considerable Uncertainty As To The Compass Of Contractual Damages".<Tab/>Discuss.

3064 words - 12 pages

Section 1IntroductionIn a successful economy there needs to be a reliable interchange of goods and services. The market place can be seen "as the principal mechanism for the production and distribution of wealth". Contracts are drawn up to make both parties aware of the intentions of each other and to make the exchange legally enforceable. This essay is primarily concerned with what happens when there is a breach in the contract. Most contracts will contain remedies which sets out what will happen in situations where a party breaches a condition in the contract. In some situations no such remedies will have been agreed. If no settlement can be reached between the two parties then the case will often have to be settled by a Judge, who will then award damages to the injured party. In modern day contract law there is however considerable uncertainty with respect to the scope of damages. The primary focus of this essay will be to examine the area of damages for the loss of a consumer surplus; it will then go on to briefly examine uncertainty in third party contract rights and restitutionary damages.Section 2 Difficulties when awarding damages for a loss of a consumer surplusThe object at the heart of damages is to put the injured party, so far as money can do it, in the same position as if the contract had been performed . Damages are not designed to punish the defendant but to compensate the injured party for the contract not being performed. A court when awarding damages should ask the questions of 1) what consequences should be compensated for and 2) how should the damages be quantified. The Judge will consider the remoteness of the claim with the precedent being set in Hadley v Baxendale. The Judge's statement set out a two part rule which is known as "the rule in Hadley v Baxendale". The Judge once he has decided what terms have been breached will have to quantify it into a monetary term. The Judge in most contracts will be able to examine the market value and find a monetary amount which will put the injured party back in the same position as if the contract had been carried out which is known as the expectation interest. When a contract is for a consumer surplus such as one to enhance relaxation it can be very difficult to quantify the expectation interest. This is demonstrated well in an article by Ewan Mckendrick where he writes,"The law was developed largely in the context of contracts entered into by the parties with a view to making a profit, often but not always commodity sales. The rules of law work tolerably well in that context but they do not translate so easily into the situation where the parties enter into a contract for reasons other than the pursuit of profit"In these situations the injured party is attempting to recover the damages which equate with the performance of the contract. The issue is whether the damages should cover the cost of cure, or the difference in value between the contracts. The two recent cases of Ruxley v...

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