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Measuring Damages in the Law of Obligations : The Search for Harmonised Principles - Sirko Harder

Measuring Damages in the Law of Obligations

The Search for Harmonised Principles

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This book challenges certain differences between contract, tort and equity in relation to the measure (in a broad sense) of damages Damages are dedined 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 worng. 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 (eg 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 scruntinise the arguments in defense 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 principals

1: IntroductionI 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 V SAAMCO 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 ActOverview 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 LiabilityThe 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 TettenbornG 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 BehaviourA 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 BreachB 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 Bibliography Index

ISBN: 9781841138633
ISBN-10: 1841138630
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 330
Published: 12th July 2010
Country of Publication: GB
Dimensions (cm): 23.5 x 13.34  x 1.91
Weight (kg): 0.68
Edition Number: 1