What are damages?
An award of money that is intended to cure a wrongful event.
What are expectation damages?
Represent the monetary value of the benefit that the plaintiff expected to recieve under the contract.
Do torts look backwards or forwards in determining damages?
Backwards. They are easily justified.
Do contracts look backwards or forwards in determining damages?
Forwards. They allow the plaintiff to recover the value of something that it never previously enjoyed, but merely expected to receive under its contract with the defendant.
Do expectation damages look backwards or forwards in determing?
Forward looking. Intended to place the plaintiff in the position that is expected to be in after the contract was properly preformed.
Are expectation damages easy to calculate?
Not at all. The courts do the best they can, but if the loss is entirely speculative, a court will not award damages.
Is it always easy to decide what the plaintiff expected to receive from the defendant?
No, there may be a question as to whether the plaintiff expected to receive a service or the value of the end product.
What problem can arise from contracts allowing the defendant to perform in a variety of ways in relation to expectation damages?
That can cause more or less benefits to the plaintiff.
What is an intangible loss?
A loss that has no apparent economic value.
Example: anger, sadness, disappointment.
When is a loss remote?
When it would be unfair to hold the defendant responsible for it.
Is a loss remote when the defendant either should have known or actually did know?
If a reasonable person would have known, then defendant might be liable.(even if plaintiff did not draw attention to it.)
Liability may be imposed if the defendant actually knew that the plaintiff's loss might result from the breach.
Can a party be held liability for a loss that a party could not have predicted?
Nope. Reasonable person test.
What is mitigation?
When the plaintiff takes steps to minizie that defendant's breach.
What are the 4 points about mitigation?
- 1. Lawyers sometimes say that there is a "duty to mitigation."
- 2. Plaintiff is responsible only for taking reasonable steps to mitigate a loss.
- 3. Damages are denied only to the extent that the plaintiff unreasonably failed to mitigate.
- 4. Plaintiff can recover the costs associated with mitigation.
What are reliance damages?
The monetary value of the expenses and opportunities that the plaintiff wasted under a contract.
They can only be awarded to the extent that a contract is not profitable.
What are nominal damages?
Symbolize the fact that the plaintiff suffered a wrong when the defendant broke a promise. Since they are only symbolic, nominal damages are awarded in very small amounts, such as $10.
Nominal damages are bad to bring to court. Judge feels like he is wasting his time and will sometimes make the plaintiff pay the costs of the trail.
What are liquidated damages?
A genuine attempt to estimate the value of the loss that may occur as a result of the breach.
What is a penalty?
Requires a party to pay an exorbitant amount if it breaches the contract.
What are punitive damages?
Intended to punish the defendant and discourage other people from behaving badly.
Does the US or Canada award more punitive damages and for larger amounts?
US, cause in Canada we aren't bastards.
What is specific performance?
When the court orders the defendant to fulfill a contractual obligation to do something.
What 4 factors are needed for specific performance?
1. Adequacy of damages - only if monetary damages would prodive an inadequate remedy.
2. Mutuality - specific performance can be awarded only if it could be awarded against that same party.
3. Judicial supervision - will not award specific performance if it means parties have to repeatedly come to court.
4. Personal services - courts will not make a person act against their will.
What is an injuction?
When the court orders the defendant to no do something that is prohibited by the contract.
What is the difference between specific performance and injunctions?
Specific performance requires a party to do something. And while they are doing that thing, they cannot do anything else.
Injunction requires a party to not do something. And when they aer not doing that thing they remain free to do anything else.