HART STUDIES IN PRIVATE LAW MONEY AWARDS IN CONTRACT LAW David Winterton MONEY AWARDS IN CONTRACT LAW The quantification of contractual money awards is a topic of both significant theoretical interest and immense practical importance Recent debates have ranged from the availability of gain-based relief to the basis for principles of remoteness and mitigation While these and other important issues, such as the recovery of damages for non-pecuniary loss, are touched upon, the book’s principal objective is to challenge the conventional interpretation of the principle generally acknowledged to govern this area of the law, which Parke B famously laid down in Robinson v Harman According to this conventional interpretation, the objective of all money awards given in accordance with the Robinson v Harman principle is simply to ‘compensate’ the promisee for the ‘loss’ that can be attributed to the promisor’s failure to perform as promised After challenging this orthodoxy, Dr Winterton proposes a new understanding of the Robinson v Harman principle, which draws an important distinction between money awards that substitute for the performance promised and money awards that aim to make good certain detrimental factual consequences that can be attributed to a promisor’s breach In exploring the significance of this distinction, the different principles underpinning the quantification and restriction of each kind of award are explored in addition to some important theoretical issues such as the effect that the occurrence of a breach has on the rights generated by contract formation The book’s unifying objective is to outline a coherent picture of the law of contractual money awards It will be of interest to judges, practitioners and academics alike Volume 13 in the series Hart Studies in Private Law Money Awards in Contract Law David Winterton OXFORD AND PORTLAND, OREGON 2015 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: http://www.isbs.com © David Winterton 2015 David Winterton has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is an imprint of Bloomsbury Publishing plc All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-457-4 ISBN (ePDF): 978-1-78225-295-5 FOREWORD BY JUSTICE STEPHEN GAGELER High Court of Australia It is now almost 170 years since Baron Parke enunciated his ‘ruling principle’1 with respect to damages for breach of contract at common law The theoretical difficulties inherent in the outworking of that longstanding principle did not need to be addressed while common law procedure left damages to be determined by juries The theoretical difficulties began to emerge as procedural reforms transferred questions of the quantification of damages increasingly to judges whose processes of reasoning were required to be articulated in their reasons for judgment Despite significant common law developments in principles of contractual liability, the law of contract damages long remained largely un-theorised Just over 100 years ago it could still be said that ‘[t]he quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in particular cases’.2 Fuller and Perdue took an important step in the identification and articulation of intermediate principles of contract damages in their highly influential taxonomy of measures of financial loss which may flow from a breach of contract.3 Yet just under 20 years ago it could still be remarked that a simple question of contract damages could result in a wide variety of judicial opinion.4 More recent divisions of opinion as to the appropriate method of quantifying damages in novel but uncomplicated fact situations, in cases in the House of Lords5 and in the High Court of Australia,6 serve to illustrate the depth of the theoretical issues that remain Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, 286, quoting Wertheim v Chicoutimi Pulp Co [1911] AC 301 (PC) 307 British Westinghouse Electric & Manufacturing Co v Underground Electric Railways Co of London [1912] AC 673 (HL) 688 L Fuller and W Perdue, ‘The Reliance Interest in Contract Damages’ (1936) 46 Yale Law Journal 52 Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344 (HL) 361 Golden Strait Corporation v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] UKHL 12, [2007] AC 353 Clark v Macourt (2013) 88 ALJR 190, [2013] HCA 56 vi Foreword David Winterton in this book grapples with those deep philosophical issues His contribution to the theorisation of contract damages is bold and ambitious Critiquing Fuller and Perdue philosophically and analytically, Winterton provides an alternative theoretical explanation of the burgeoning mass of existing case law His explanation is based on a conceptual framework within which the fundamental distinction is between damages which substitute for performance of a contract and damages which compensate for loss caused by non-performance The thesis presented is developed through the application of what is helpfully identified in explicit terms as an ‘interpretative’ methodology, in which ‘principle’ is given primacy over ‘policy’, and in which ‘principle’ is charted as the line of most rational fit with the data provided by the decided cases It is inevitable in the application of such a methodology that some aspects of the existing case law will be elevated, and other aspects of the existing case law de-emphasised, so as to achieve a rational fit with the conceptual distinction propounded It is also inevitable that the distinction itself will require qualification and refinement so as to accommodate those aspects of the existing case law which the premises of the methodology require to be accepted There will inevitably be flow-on effects to related doctrines Not all aspects of all of the decided cases can be expected to survive unquestioned Not every required qualification or refinement of the conceptual framework, nor every flow-on effect, can be expected to be recognised and articulated No conceptual framework, new or old, can be expected to provide all answers to all problems; at best it can bring a measure of structure and consistency to the analysis of those problems, and a measure of predictability to the outcomes of that analysis A new conceptual framework brings its own novel set of issues to be worked through, and tested, from case to case Conscious of those ramifications of the ambitiousness of his project, David Winterton has done much to explain how many principles, including those of remoteness and mitigation, are to be fitted into his new conceptual framework, to anticipate some major objections to the framework, and to suggest how it might prove useful in practice in shedding new light on problems which have shown themselves to be difficult to resolve in the past Economic and social consequences of adopting the new conceptual framework, including the systemic impact of the incentives it might create for contracting parties, are left for future exploration The book is a welcome addition to the literature in a field for too long under-theorised ACKNOWLEDGEMENTS This book is a revised and updated version of the doctoral thesis I defended in Oxford in October, 2011 Its production has depended heavily on assistance from numerous sources In Justice James Edelman and Professor John Gardner, I had the benefit of two dedicated and inspirational DPhil supervisors who guided me carefully along the path to completion From each of them I learned a great deal and I am extremely grateful for the support they provided during my time in Oxford I also wish to express my deep gratitude to both the Rhodes Trust and Magdalen College for the generous support, financial and otherwise, that each institution afforded me during the course of my studies, as well as to Richard Hart for backing the project, and to his fantastic team for their hard work in helping to bring it to fruition Via written comments, conversations, or simply friendship, numerous others also contributed to this book’s production In this regard, I would particularly like to thank Scott Ralston, Carmine Conte, Fred Wilmot-Smith, Andrew Dyson, Andrew Lodder, Eli Ball and Tatiana Cutts for astute comments on earlier drafts and for their general willingness to engage in fruitful discussion on the topic Ben Spagnolo deserves special praise in this regard; in addition to providing me with me a plethora of insightful comments, he was also instrumental in the very practical task of producing the final thesis document itself I also wish to express my appreciation to Gageler J for kindly agreeing to write a foreword to the book and for his willingness to engage with me in discussion about some of its central concerns following publication of the High Court’s reasons in Clark v Macourt [2013] HCA 56 My final debt of gratitude is to my parents Without my father’s encouragement and example of fine scholarship I may never have embarked upon this project and without my mother’s support and understanding I may never have finished it 322 Conclusion by now clear, this is not the case First, the requirement that an innocent party be ‘ready, willing and able’ to perform its prospective contractual obligations in order to recover compensation for the lost bargain at least partially alleviates Atiyah’s principal concern Secondly, and more fundamentally, the substitutionary extension this book proposes is unaffected by Atiyah’s criticisms because a party’s entitlement to such an award is dependent, at least, upon the fulfilment of all conditions (precedent and subsequent) to which his right to performance was subject Moreover, in recognising the need to distinguish a case where not all these conditions have been fulfilled from one where the innocent party’s entitlement to performance has accrued unconditionally, the new account is actually in harmony with the essential spirit of Atiyah’s critique, which was to ensure an appropriate differentiation in the enforcement of executed and executory promises A second important implication of the new account is that it may reduce the perceived need exceptionally to allow profit stripping as a response to certain kinds of cynical or egregious contractual breaches As Professor Peel has noted, ‘the clamour for restitutionary damages is based on the perceived inadequacies of compensatory damages’.6 However, once the fallacy of the hegemony of (reparative) compensation is excised from the law and the possibility of substitutionary awards is recognised, many of these perceived inadequacies dissolve To explain further, it was noted in Chapter that the performance-oriented account advanced here may remove the need for the separate category of gain-based awards that Edelman and others have labelled ‘restitutionary’.7 But in the above quotation Peel was using the term ‘restitutionary’ in a broader sense to include awards that Edelman (and others) would describe as instances of ‘disgorgement’ The legitimacy of such awards has been challenged,8 but to the extent that they are justifiable, the best explanation for them may lie in the desirability of deterring certain egregious breaches of contract.9 Such a view might be consistent with the emphasis on performance advocated in this book, but substantial additional work is needed to demonstrate that this is the case.10 Moreover, to the extent that profit stripping continues to be perceived as necessary, a greater appreciation of the possibility of substitutionary money awards may reduce this perception in any event E Peel, ‘Loss and Gain at Greater Depth: The Implications of the Ruxley Decision—A Comment’ in F Rose (ed), Failure of Contracts—Contractual, Restitutionary and Proprietary Consequences (Hart Publishing, 1997) 27, 29 J Edelman, Gain-based Damages: Contract, Tort, Equity and Intellectual Property (Hart Publishing, 2002) 113 See Chapter 2, Section III.B For one notable example, see D Campbell and D Harris, ‘In Defence of Breach: A Critique of Restitution and the Performance Interest’ (2000) 22 Legal Studies 208 Edelman (n 7) 83–86 For an explanation of why the current author remains sceptical of this, see D Winterton, ‘Contract Theory and Gain-Based Recovery’ (2013) 76 MLR 1129 10 This claim is supported by the forceful arguments recently mounted against allowing such awards in C Rotherham, ‘Deterrence as a Justification for Awarding an Account of Profits’ (2012) OJLS 537 INDEX action for agreed sum: see recovery of debt action amenity: see loss of amenity (Ruxley) anticipatory breach doctrine 305–6 balance of probabilities test 306 case law The Glory Wealth 302–7 The Golden Victory 290: see also Golden Victory (compensatory principle) Hasham v Zenab 125n 111, 144–5, 147 Leofelis 294–302, 305–6 The Mihalis Angelos 301 The New Flamenco 94–5 Panatown 163–4 Rawson v Hobbs White & Carter 153–6 mitigation and 149 ‘next best thing to performance’ 179, 320 performance, reciprocal right to and 8, 144–5, 149–50, 173, 179, 302–7 quantification of award 301–2 substitutionary vs compensatory award 14, 28, 42, 144–5, 149–50, 301–2 third parties and 56 unconditional entitlement to performance requirement 144 anticipatory repudiation: see anticipatory breach doctrine Aristotle 9, 219 Atiyah, P 135, 142, 181n 4, 321–2 Austin, J 124, 125–6 Baker, J 150–1 balance of probabilities 112, 120, 181–2, 193, 208, 223, 226, 265, 272, 298, 302–7 Barnes, D 19n 53 Barnett, K 175n 184, 203n 114, 206n 123 Beatson, J, A Burrows and J Cartwright 138n 19, 314n 114 Beever, A 9n 19, 11n 36, 31n 37 Bell, M 184n 19 Benson, P 9n 21, 103, 219n Birks, P 46, 105–6, 116, 123, 192n 62, 193, 201n 110, 218n Bridge, M 70, 78–9, 149, 213n 149, 248n 151, 252, 253, 279, 305 British Westinghouse absence of detriment/enhanced position, relevance 77–8 compensatory principle 27, 76n 133 expectation damages 24 mitigation/avoided loss rule 87–9, 90, 249–50, 280, 308 post-breach benefits 87–9, 90, 249–50 building work, defective performance 82–4 burden of proof 27–8, 80, 81–2, 250n 168, 266n 19, 268, 304n 71, 306, 308 Burrows, A 16, 31, 52, 62–3, 65, 70, 87, 89, 90, 91–2, 100n 8, 118n 85, 147n 65, 169, 169n 163, 181–2, 185n 28, 207, 225n 40, 247n 150, 249n 162, 252n Campbell, D and D Harris 322n Capper, D 289n 19 carriage of goods contracts case law Dunlop/Albazero 53–4 Rodocanachi 80–1, 278 Ströms Bruks 80, 278 consignor’s right of recovery after transfer of property to consignee (Dunlop/Albazero) 53–4 Carriage of Goods by Sea Act 1992 (UK) 53 conflict with Robinson v Harman principle 53–4 difference in value measure 79–81 Carter, J and E Peden 289n 19 Carter, JW 8n 15, 154, 155, 299 Cartwright, J 238, 239–40, 241, 243–4, 256n 186 causation: see also remoteness rule ‘but for’ test 223–4, 250 case law Alexander v Cambridge Credit 224 Baker v Willoughby 223 Barnett 223 Cook v Lewis 223 Empress Car 224 Fairchild 223 Galoo 225 Jobling 223 McGhee 223 324 Index Nykredit 225 SAAMCO 224–5, 235 Silver Sky 223–4 mitigation principle and 102n 19, 249–50 novus actus interveniens 223–4 overview 223–5 Chambers, R 309n 99 Chen-Wishart, M 145n 57 coercive orders: see injunctions (prohibitory/ mandatory); specific performance Coleman, JL 46n 4, 219n 10 compensation, definitions of academic conceptions Radin 120–1, 122 Sherwin 120, 122 Tilbury, Noone and Kercher 121 ambiguity 117–18, 319–20 case law Blake 119 Jaggard 118, 159 Ruxley 119, 122 Wrotham Park 118–19 WWF 119, 121, 122 ‘damages’ distinguished 110, 114–15 ‘making good factual detriment’ (‘compensatory principle’) 4, 13, 25, 26, 42, 44n 1, 110, 114–22, 180, 216–17, 319–20 ‘reparation of a wrong through the delivery of an equivalent’ 121 substitutive vs reparative compensation 221–2 vindication of primary right distinguished 122, 206 compensatory money award 216–57: see also factual detriment as measure of compensation; Golden Victory (compensatory principle); Robinson v Harman principle; substitutionary vs compensatory award, distinctions basis contention over 110, 115, 217, 318 parties’ agreement 257 primary right to performance 6, 12, 122, 142, 174, 318 secondary right to repair: see secondary right to repair as basis of compensatory award breach as trigger definition/purpose 3, limits on compensatory recovery: see also causation; double recovery, prohibition; mitigation/avoidable loss rule; non-pecuniary harm, recovery for, limitations on; remoteness rule inherent limits 222–7 parties’ agreement and 228 measure as difference between present position and hypothetical position in absence of breach 3, 13, 27, 28, 86–9, 93, 94, 98–9, 100–1, 102–3, 111–12, 180, 184–5, 302 as replicative remedy 124–7, 320 confidentiality, award for breach of 67–8, 210, 283 continuity thesis 172–6, 220n 19, 221–2, 313, 318: see also ‘next best thing to performance’, post-breach persistence of reasons grounding right to performance as basis contracts of carriage 79–81 contractual performance, right to: see performance, reciprocal right to contractual remoteness rule: see remoteness rule Cooke, R 240n 121 Coote, B 10–11, 53, 100n 10, 170, 190, 269n 32, 276, 284n 91, 290n 20 corrective justice 9, 12, 102, 120–1, 174, 179, 219–20 cost of cure award: see cost of repairs award cost of market substitute award 185–8 case law Clark v Macourt 187 Force India 187–8 Regus 187 Slater 186–7 White Arrow 187, 188 commercial predictability, relevance 297, 300 definition 183 as measure of cost of substitute award 5n as minimum cost/cheapest way 10n 28, 186 as next best thing to performance 320 SGA 51(3) 185–6 cost of repairs award 183–201, 261–70: see also cost of substitute performance award (general) Note: also known as ’cost of cure’ or ‘cost of reinstatement’ award absence of detriment/enhanced position, relevance 82–4 building repairs defective performance of building work 82–4 tenant’s obligation to repair 84–5 case law Bellgrove 185, 188–9, 195, 200, 262, 270n 37 Darlington 98, 195–6, 265 De Beers 196 Dean v Ainley 83, 196, 265, 270 East Ham 183, 184n 15, 189, 191, 262 Jacob & Youngs 185 James v Hutton and Cook 198 Joyner 84–5, 165–6, 171, 190 Linklaters 266, 267, 268 Index Panatown 184, 194–5, 201, 273–6 Peeveyhouse 200 Radford v De Froberville 184–5, 193–4, 263, 266, 267 Ruxley 36–7, 38–42, 113n 63, 119n 88, 183–4, 193n 65, 195, 199, 264–72 Samson 83 Tabcorp 184, 185, 188–9, 190, 269n 33 Tito 82, 137, 138, 192–3, 200, 263, 265 Westminster (Duke) v Swinton 190 Wigsell 191, 192, 200n 100 definition 183 difference in value award, distinguishability 170–1, 190n 54, 281–2 intention to cure, relevance 82–3, 84–5, 191–9, 200, 264–5, 271n 42 as measure of cost of substitute award 82, 318 as minimum cost/cheapest way 183, 261–2 mitigation/avoidable loss rule 36–7, 84, 194, 249–50, 264, 265–70 as monetary equivalent of specific performance 10n 27 as primary substitutionary measure 10–11, 170, 320 compensatory award distinguished 10–11, 266–8, 282nn 85 and 87 reasonableness requirement 188–201, 205n 119, 261–70, 318 various meanings of ‘reasonableness’ 268–70 unconditional entitlement to performance requirement 261–2 cost of substitute performance award (general): see also cost of market substitute award; cost of repairs award; difference in value award; price of release award; substitutionary vs compensatory award, distinctions; third party-related award, exclusionary rule exceptions alternative terminology 127–9 breach, relevance 6n case law: see also cost of repairs award, case law AIB 315n 116 The Alecos M 200 Channel Island Ferries 200 Ford v White 26–7, 139, 211–12, 213 Hussey/Gardner/Needler 93 Pell Frischmann 66–7, 209–10 Sunshine 191–2 White Arrow 197 compensatory element compensatory money award distinguished 28 compensatory or substitution award? 10–11, 170 definition 3, 325 dependence on fulfilment of promisee’s own obligations difference in value award, distinguishability 39, 170–1, 190n 54: see also difference in value award English law’s preference for monetary award 1, 40, 135–6 civil law practice 199 intention to cure the breach, relevance 4–5, 37–8, 82–3, 84–5, 191–9 irreversibility of breach and 93, 178–9 measure/quantification 179–88 cost of repairs: see cost of repairs award harm principle 176n 185, 182–3 lost opportunity 274–5 market value of services not received (cost of market substitute): see cost of market substitute minimum cost test/cheapest way 5n 6, 10, 14, 74–5, 170, 175, 178, 179–80, 181–3, 186, 188, 189, 197, 201, 202, 210, 261–2 possibilities 5n ‘reasonable approximation of price of release’ 65, 66–7, 84–5, 176–7, 186n 32, 193–4, 205, 206, 207, 209, 210–13, 276 as ‘next best thing to performance’ 4, 40, 116–17, 126–7, 167–8, 320 quantifiability requirement 5, 6–7, 10n 29, 11, 128, 178–9 requirements quantifiability 6–7 reasonableness 7, 11, 42, 170, 188–201, 261–70, 271–2, 273 unconditional entitlement to performance requirement 4, 5, 7–8, 135, 179, 180–1, 261–2, 320 ‘restitutionary damages’ as 65, 66–7, 209 right to performance as basis 3, 6, 14, 107–8, 179–80, 226n 47 as replication of primary right 124–7, 320 substitution for performance vs right of performance 9–10 rights-based theories and 9–10 substitutive damages theory and (Stevens) 9n 29, 10, 68, 117, 128, 134, 152, 168–71, 177, 209–10, 215, 275, 281–2, 284, 290, 315n 116 Cunnington, R 49, 119n 91 damages, definitions of 114–17, 320 performance damages 127–8 substitutive damages theory 9n 29, 10, 68, 117, 128, 134, 152, 168–71, 177, 209–10, 215, 275, 281–2, 284, 290, 315n 116 damnum vs iniuria 63, 106–7 Daube, D 106 Dawson, F 305n 83 Dawson, J 145, 237 326 Index debt recovery: see recovery of debt action deficiencies in the law, contributory factors detriment, relevance: see difference in value award, absence of detriment/enhanced position, relevance; factual detriment as measure of compensation difference in value award absence of detriment/enhanced position, relevance 69–70, 72–3, 77–8, 186, 278, 279 accrual of post-breach benefits 87–95: see also post-breach benefits breach of contract other than for sale of goods 79–87 profit-stripping remedy 83, 208 absence of difference 39 breach of contract other than for sale of goods breach of restrictive covenant 85–7 contracts of carriage 79–81 contracts of employment 81–2 defective performance of building work 82–4 tenant’s obligation to repair 84–5 compensatory or substitutionary award? 185–6, 226–7 intention to cure the breach, relevance 37–8, 82–3 as measure of prospective financial loss 10n 24 policy considerations 79 remoteness, relevance 75–6, 94, 103 right to performance as basis/as substitution award 74, 161–2 sale of goods: see sale of goods, award for breach of contract by seller exceeding promisee’s factual loss standard/burden of proof 27–8, 80, 81–2 vs minimum cost of substitution 10 difference in value award, case law: see also post-breach benefits, case law Bence 75–6, 166–7, 279–80, 284–5 Clark v Macourt 3, 76–8, 86, 162, 187, 281 Dakin v Lee 82–3 Force India 187–8 Galley 81–2, 195 Gilbert 85–6, 208–9 Harbutt’s ‘Plasticine’ 83–4, 227, 293 Jones v Just 69 Joyner 84–5, 165–6, 171, 190 Miles 82, 165 The New Flamenco 88n 192, 293 Rodocanachi 80–1 Royle 81–2, 165 Ruxley 37–8, 39 Samson 83 Slater 73–5, 186–7 Ströms Bruks 80, 278 Wertheim 72–3, 278, 283–4, 319 White Arrow 27–8, 165, 187, 188, 189, 197, 213 Williams Bros 69–70, 81, 186, 278, 279, 285, 300–1 ‘disappointment’ as basis of award 32, 39, 40–1, 112–13, 267n 24, 270 disgorgement: see punitive damages/ disgorgement double recovery, prohibition 226–7 British Westinghouse 281–2 Hasham v Zenab 226n 47 Tang Man Sit 226–7 duty of care deed/contractual provision 33–4, 57–8, 59, 90–1, 163, 184, 275 Dworkin, R 1, 9n 22, 11–12, 17, 31n 37, 79 Dyson, A 88n 188, 280–3 Dyson, A and A Kramer 292n 31 economic duress 145 Edelman, J 33n 46, 39n 77, 59n 61, 63, 64, 65, 85, 112, 115–17, 118, 126n 117, 128, 169, 170, 203n 114, 205–6, 208–9, 263, 298n 45, 322: see also Elliott, S and J Edelman Eisenberg, M 16n 44, 239n 110 Eleftheriadis, P E 123n 104 Elliott, S 126n 117, 128, 151, 152–3, 221–2, 315n 116 Elliott, S and J Edelman 152n 82 employment contracts 33–4, 81–2 Farley 33–4 Galley 81–2 Hatton 33–4 Johnson v Unisys Ltd 34 Miles 82 Royle 81–2 Enonchong, N 29 equality before the law 1, 198 equitable remedies 136–7 exclusivity, award for breach of 66–7, 209–10, 294–6, 297, 302 expectation measure (Robinson v Harman) as alternative to ‘compensatory principle’ 24 criticism of 98–9 reliance damages and 24, 98–9, 100, 316, 321 factual detriment as measure of compensation: see also sale of goods, award for breach of contract by seller exceeding promisee’s factual loss absence of detriment/enhanced position, relevance 69–70, 72–3, 77–8, 186, 278, 279 as additional entitlement 5, 177 examples of challenge to doctrine 44–5 factual detriment as synonym for 216, 229, 319–20 Index financial loss as traditional focus 3, 13, 26–8, 42–3, 214, 317 ‘so far as money can it’ (Robinson v Harman) 25–6, 27, 162, 254n 182 ‘harm’/‘injury’ as detriment 105, 108n 48 limitation of ‘compensatory awards’ terminology to awards making good factual detriment 113, 122, 128, 216–17 restrictions on recovery of compensation and 217, 227, 281, 282–3 limits on compensatory recovery: see causation; double recovery, prohibition; Golden Victory (compensatory principle); mitigation/avoidable loss rule; non-pecuniary harm, recovery for, limitations on; remoteness rule non-compensatory money awards distinguished 45, 51 non-correspondence between award and detriment 4, 13, 46, 65–6, 119, 121–2, 133n 1, 149, 160 expectation measure 24–5, 98–9 Robinson v Harman principle and 13–14, 98, 101, 316–17 substitutionary awards distinguished 5–6, 133, 151–2, 157, 160–2, 175–6, 177, 178, 321 as synonym for ‘loss’ 216, 229, 319 Feinberg, J 105–6, 107, 110–11 financial detriment as focus: see factual detriment as measure of compensation, financial loss as traditional focus Friedmann, D 24n 5, 100, 103, 139n 21, 233–4 frustration of contract 144, 145 Fuller, L and W Perdue: see Robinson v Harman principle, Fuller and Perdue’s challenge gain-based award 47–51 case law Blake 48–50, 102, 133n 1, 165, 226n 46 Experience Hendrix 51 Inverugie 65, 206 Niad 50–1 Pell Frischmann 65, 66–7, 206, 209 Wrotham Park 65, 119 WWF 119 as exception to compensatory principle 49–50, 51 no-gain 65, 206, 209–10 ‘no profit from own wrong’ principle 48–9 profit-stripping remedy 49, 50–1, 101–2, 119, 165n 144 restitutionary remedy distinguished 50 Gardner, J 9n 24, 219n 13, 220, 221–2, 318: see also ‘next best thing to performance’, torts ‘corrective justice’ analogy (Gardner) Giglio, F 117 Gleeson, AM 242n 128 327 Glory Wealth (balance of probabilities) 302–7 court’s decision 304–5 defence of 305–7 factual background and arguments 302–4 Golden Victory (compensatory principle) 286–302: see also Loefelis (breach of exclusive licensing agreement) anticipatory breach doctrine and 291 as compensatory award 291–2, 300–2 date for determination of compensation (Bwllfa principle) 288–9, 292n 31 decisions academic controversy 289–90 Court of Appeal 287 High Court 287 House of Lords majority 287–8 minority 288–9 factual background 286–7 justice and 299–300, 314 policy considerations (commercial certainty) 70, 289, 290, 293, 297–8, 300 post-breach benefits/enhanced position, relevance 289, 293 unconditional entitlement to performance requirement 290–2 Graham, M: see McKendrick, E and M Graham Harder, S 255n 185 ‘harm’ as factual deterioration 110–11 loss distinguished 105–6 harm principle 176n 185, 182–3 Harris, D, A Ogus and J Phillips 38, 204, 272 Harris, D, D Campbell and R Halston 242n 130 Hart, HLA and A Honoré 223nn 28 and 31 Hartshorne, J 32n 41, 255n 185 Hawes, C 74 Hoffmann, L (extrajudicial) 95, 225n 44, 245, 247 Hohfeld, W 106, 123–4, 144n 51, 147 Holmes, OW 134–5 Holmesian objection 134–41, 146–7, 177 Ibbetson, D 150–1, 168n 159 infringement of right and loss flowing from that infringement distinguished 46, 95–6, 105, 106–7 infringement/violation, distinguishability 46n injunctions (prohibitory/mandatory) 141–2 Doherty v Allman 141 right to performance and 141 ‘injury’ 106–7 interpersonal justice vs policy considerations 11, 229n 56, 242, 247n 10, 251–2 328 Index interpretative legal theories, criteria 16–19 coherence 18 fit 17 morality/justification 17–18 overlap 17–18 transparency 18–19 Jones, G 192n 62, 193, 205 justice: see also corrective justice elements/principles balance between parties 1–2 equality before the law 1, 198 principles as basis 11 as fundamental principle 1–2 The Golden Victory 299–300, 314 Hadley rule/fairness rider and 240–3, 245–7 Johnson v Agnew 314 specific performance and 137, 138 Kimel, D 99n 2, 102n 17, 137, 173, 226n 46 Kramer, A 3n 4, 51, 93n 219, 215, 237–8, 239, 247–8: see also Dyson, A and A Kramer late delivery of goods 71–3 legal remedy equitable remedies 136–7 recommended definition (Zakrzewski) 124–5 replicative vs transformative classification 124–7, 320 uncertainty of meaning 123 legal rights/duties alternative conceptions of 123–4 rights as reasons for action 147–8 duty in absence of right 250 primary and secondary rights distinguished 124 right and enforcement of distinguished 123–7, 134, 146–8 substantive and remedial rights, relationship 113, 124, 126, 134, 320 continuity thesis 172–6, 220n 19, 221–2, 313, 318 ‘legitimate interest’ profit-stripping awards 49, 50 recovery of debt action and 153–6, 189, 201 Linden Gardens exception (promisee’s right to recover third party’s loss on property contract) 55–60 Panatown application of availability of direct remedy, relevance 57–8 ‘broad’ principle, rejection/support for 58–9 defective performance as ‘loss’ 58–9 endorsement of general exclusionary rule 57 intention to cure, relevance 194–5, 273 ‘narrow’ principle endorsement 55, 56, 57–8 promisee’s right to recover for defective performance compared 57–8 limitation of Linden Gardens exception to 10 statement of principle 55, 56, 57 Liu, Q 155, 189, 201, 289n 19, 290, 292n 30, 305n 83 Loefelis (breach of exclusive licensing agreement) 294–302 applicability of Golden Victory principle 295–302 comparability of cases 297–9 compensatory principle 300–2 date for determination of compensation 296–7 factual background 294–5 parties’ arguments 295–6 policy considerations 299–300 Loke, A 200, 270n 37 ‘loss’: see also damages, definitions of; factual detriment as measure of compensation ‘damage’ as synonym 110 damage vs injury (damnum vs iniuria) 63, 106–7 defective performance as 25, 36–7, 58–9, 60, 107–8, 109, 162–5 financial loss 107–9 ‘harm’ 105–6, 110–11 ‘injury’ distinguished 106–7 lost profits as 111–12 non-pecuniary harm 107–9, 111–13: see also non-pecuniary harm, recovery for physical or economical deterioration 109–13 recovery under a deed award 161 Robinson v Harman principle and 25, 103–4, 129, 317 tort definition, identity with 112 variety of meaning/ambiguity 13–14, 25, 104–13; possible definitions (loss/damage/ injury/harm) 109–11, 319 loss of amenity (Ruxley) alternative possibilities/relevant factors cost of repairs award 36–7, 38–42, 113n 63, 119n 88, 193n 65, 264–72 difference in value award 37–8, 39 intention to cure defect 37–8, 195, 199 pacta sunt servanda 36, 142–3 as price of release award 39–40 unquantifiability/unreasonableness of cost of substitution 36–7 Watts ‘very object of the contract exception’ 39 Index facts 35–6 summary of judgments Court of Appeal 36–7 House of Lords 37–8 trial judge 35–6 lost opportunity 62–3, 67–8, 99, 111–12, 274–5 lost profits 111–12 McBride, N 49n 11, 102n 16 MacCormick, N 219n 10 McGregor, H 16n 43, 87, 88n 193, 92n 211, 104n 23, 114–17, 248–9, 250, 281n 81, 310n 101 McInnes, M 63, 312n 108 McKendrick, E 28n 14, 41, 51, 57, 108n 41, 136, 138, 201, 250n 166, 278n 60 McKendrick, E and K Worthington 34nn 50 and 52 McKendrick, E and M Graham 32n 41, 33, 41 McLauchlan, D 19n 53, 72–3, 88, 90–1, 249, 283, 292–3, 302n 59 Marshall, P 200n 104 Mayne, J 115–16 Meagher, MJ, JD Heydon and MJ Leeming 270n 38 measure/quantification of cost of substitute performance: see cost of market substitute award; cost of repairs award; cost of substitute performance award (general), measure/ quantification; price of release award mental distress, changing attitudes to compensation for case law Addis 29, 254, 255 Farley v Skinner 32–3, 40–2, 112, 254, 255 Fidler 255 Hatton 33–4 Jarvis v Swans Tours Ltd 30–1 Johnson v Gore 111, 256 Johnson v Unisys Ltd 29 Milner 34–5 Ruxley 29 Watts 28, 30, 31–3, 39, 108, 111, 254, 256 contractual remoteness, relevance 31, 33 examples 30–1 damages for ruined holiday 34–5 stress at work 33–4 measure of compensation 33, 34–5 substitutionary vs compensatory award 34–5 overview 23–4, 28–9, 30–5 policy considerations as basis 31 threshold requirements 34 tort and contract compared 253 329 Watts exceptions to financial detriment requirement ‘peace of mind as very object of contract’ 31, 32–3, 39 ‘physical inconvenience … and mental suffering directly related’ 31, 33 Mill, JS 182 Mitchell, C 159 mitigation/avoidable loss rule 247–53, 308–10 anticipatory breach, relevance to 149 burden of proof 268 case law Banco De Portugal 248, 267, 268 British Westinghouse 87–9, 90, 249–50, 280–3, 308 Clark v Macourt 77, 166 Dimond 281, 282n 87 The Elena D’Amico 95n 226, 249 Hussey 91–2 Jervis v Harris 155, 156, 165–6 Joyner 166 Ruxley 36–7, 166, 194 Samson 84 Southcott Estates: see Southcott Estates (specific performance/mitigation relationship) White & Carter 155–6 causation as aspect of 102n 19, 249–50 elements of avoidable loss rule 248 avoided loss rule 248–9 reasonable expenses rule 248 incoherence of the law 169, 247–50 parties’ agreement, relevance 251–2 policy considerations 251–2 ‘reasonableness’, relationship with 36–7, 194, 249–50, 265–70 recovery of debt action and 154n 94 remoteness rule and 252–3 as restriction on compensatory liability 227–8 specific performance and: see Southcott Estates (specific performance/mitigation relationship) substitutionary and compensatory awards distinguished 6, 28, 133, 149, 165–6, 167, 217 Monarch Steamship 240 money awards: see compensatory money award; cost of market substitute award; cost of repairs award; cost of substitute performance award (general); price of release award; recovery of debt action; recovery under a deed award; specific performance, monetary award in lieu of; substitutionary vs compensatory award, distinctions Morgan, J 290n 20 Mustill, M (extra-judicial) 290 330 Index ‘next best thing to performance’ anticipatory breach doctrine 179, 320 case law Livingstone 116–17 Ruxley 40 Wroth 157–8 compensatory award as 4, 19, 320 awards for wasted expenditure/reliance awards 19n 53 secondary right to repair 174–5 cost of substitute performance as 4, 40, 116–17, 126–7, 167–8, 310 objectives 320–1 post-breach persistence of reasons grounding right to performance as basis 12, 134, 158, 167–8, 171, 172–6, 179: see also continuity thesis court-ordered right 174 price of release award as 10n 29, 163–4, 206 specific performance as 179, 214, 310, 320 torts ‘corrective justice’ analogy (Gardner) 12, 134, 167–8, 171n 170, 174–5, 179n unconditional entitlement requirement 4, 177, 320 Nienaber, PM 28, 149–50 Nolan, D and A Robertson 9: see also Robertson, A nominal damages in absence of [quantifiable] financial harm 27, 28, 47 case law Greer 46–7 The Mediana 47 conventional nominal damages 46 infringement of right and loss flowing from that infringement distinguished 46, 95–6 ‘nominal’ 47 substantial nominal damages 46–7 vindicatory purpose 45 non-delivery of goods 69–71, 278–9 non-pecuniary harm, recovery for ‘disappointment’ as basis of award 32, 39, 40–1, 112–13, 267n 24, 270 limitations on 3, 28–9, 102, 108, 253–6 relaxation of 13, 23–4, 30–42, 108–9, 316–17 ‘so far as money can it’ (Robinson v Harman principle) 25–6, 27, 162, 254n 182 loss of amenity: see loss of amenity (Ruxley) mental distress: see mental distress, changing attitudes to compensation for price of release award 63 suggested bases for rule parties’ agreement 254–5 remoteness rule 255–6 vindication of primary right to performance 254n 182 Oman, N 220n 14, 221 O’Sullivan, J 198, 199n 98, 200n 101 pacta sunt servanda 11, 12–13, 36, 142–3 Palmer, N and G Tolhurst 59 Panatown: see Linden Gardens exception (promisee’s right to recover third party’s loss on property contract) Peel, E 195, 199n 99, 232, 233, 238, 240, 243, 322: see also Treitel’s Law of Contracts Pell Frischmann breach of exclusivity 66–7, 209–10 compensation vs restitution 66–7 as gain-based award 65, 66–7, 206, 209 as price of release award 209–10 as substitution for right to injunction 209–10, 283 reasonable fee award 206 specific performance, impossibility of 139, 209–10 summary of case 66–7 performance damages 127–8 performance, reciprocal right to 134–8, 318 as basis for compensatory award 8, 144–5, 149–50, 302–7 cost of substitute performance award 179–80 difference in value award 74 injunction 141 money award in lieu of specific performance 157 nominal damages 45–7 specific performance, monetary award in lieu of 157, 160 specific performance/coercive orders 134–6, 141, 144–5, 157, 160, 314, 321 substitution award 3, 6, 14, 107–8, 226n 47 case law Cooper v Jarman 143 George Mitchell 143 The Glory Wealth 302–7 Hansa Nord 143 Ruxley 36, 142–3 White & Carter 153–6 conditions precedent/subsequent and 4, 5, 7–8, 135, 142, 180–1, 261–2 Index evidence of anticipatory breach doctrine 8, 144–5, 149–50, 302–7 concept of breach 144 enforcement of executory contract 142, 291n 28, 321–2 frustration doctrine 144 pacta sunt servanda principle 142–3 restrictive approach to one-sided contractual modifications 145 tort claim for inducement of breach 146 Friedmann on 100–1 Fuller and Perdue on 99 Holmesian objection 134–5 ‘loss’ and 107–9 performance and right to performance distinguished 9–10, 98 sufficiency of breach to create right to a remedy 121, 122 Perry, S 219n 10 policy considerations appropriateness in private law claims 9, 11–12, 70–1 case law Bradburn 89, 95 Clark v Macourt 79 The Golden Victory 70, 289, 290, 293, 297–8, 300 Hall and Pim 70–1, 279 Loefelis 299–300 The New Flamenco 94–5 Parry v Cleaver 95 Robinson v Harman principle and 99 Slater 74–5 Smoker’s case 95 Watts 31 Wrotham Park 61, 64, 139–40, 207 definition 9n 22 examples avoidance of waste 60, 64, 139–40, 199–200, 207, 252, 270n 37 commercial certainty/simplicity of application 70, 71, 78–9, 155, 279, 289, 290, 293, 297–8, 300 consistency of judicial decisions 79 promotion of personal responsibility 252 intention to cure the breach 196–9 interpersonal justice contrasted 11, 229n 56, 242, 247n 150, 251–2 limitations on recovery and 229n 56 mental distress awards 31 mitigation/avoidable loss rule 251–2 principles distinguished 11–12, 300 sale of goods case law 78–9 third party/insurance payments 89 331 Posner, R 218n 4, 219 post-breach benefits case law British Westinghouse 87–9, 90, 249–50, 280–3 Gardner 92–4 The Golden Victory 289, 293 Harbutt’s ‘Plasticine’ 133n Hussey 91–3 Lavarack 87, 90 Needler 90–1, 92–3, 133n The New Flamenco 94–5, 133n 1, 227n 50, 293, 303 Rodocanachi 89–90 cost of substitute performance award and 181–2 defective performance (sale of goods) 185–6 mitigation/avoided loss rule: see mitigation/ avoidable loss rule profit-stripping remedy 95–6 Robinson v Harman principle, compatibility with 95 as substitution vs compensation award 93 third party/insurance payments 89 tort claims compared 92–3 price of release award 60–8, 163–4, 201–15 availability of 15 breach of confidentiality award 67–8, 139, 210 breach of exclusivity award 66–7, 209–10 case law Experience Hendrix 61, 62 Force India 61, 205n 119 Gilbert 208–9 Inverugie Investments 206 Needler 91 post-Wrotham Park 61 Ruxley 39–40 Smith v Landstar Properties Inc 61–2 Tamares 63 Tito 205nn 119 and 120 Vercoe 67–8, 210, 283 Wrotham Park 60–1, 62–8, 207–8: see also Wrotham Park award as compensation common law and 61 definition 5, 15, 206–7 difference in value as measure 10n 29 examples of application 61–2 justification 7, 39, 201–2 impossibility of ‘cure’ 207 unquantifiability/unreasonableness of cost of substitution and 5, 6–7, 10n 29, 39–40, 201–3, 205n 121 limitations as a substitute for performance 320–1 as ‘next best thing to performance’ 10n 29, 163–4, 206 332 Index objections to mismatch between ‘reasonable approximation’ and cost of substitution 205 subject value/incommensurability issues 204–5, 207–8 treatment of breach as a ‘taking’ 205–6 quantification 202–10 disgorgement 65, 102, 198, 203, 206, 208 personal characteristics, relevance 207–8 reasonable fee award 61, 65, 205–6, 212 relevant factors 210 remoteness rule and 204–5 restriction of award City of New Orleans 212–13 criticism of 213–14 Ford v White 26–7, 139, 211–12, 213 reasons for 213 Robinson v Harman approach, compatibility with 60, 62–3 as substitution/compensation for lost factual benefits 63, 118–19 lost opportunity to bargain for release 62 lost opportunity to seek injunction 62–3 lost right to performance 10n 29, 63 non-pecuniary loss 63 performance 210, 283 restorative injunction 60–6 transfer of value (restitutionary damages) 64, 65, 208–9, 322 principle vs policy 11–12 primacy of principle 300 privity rule 52 Contracts (Privity) Act 1982 (New Zealand) 52 Contracts (Rights of Third Parties) Act 1999 (UK) 52 profit from own wrong/unjust enrichment 48–9, 108n 48, 164, 298 profit stripping remedy: see gain-based award; punitive damages; punitive damages, profitstripping/disgorgement remedy public interest considerations 48, 64 punitive damages 65, 86, 102, 133n 1, 175, 198, 203, 206, 208, 216n 1, 226n 46, 322: see also gain-based award profit-stripping/disgorgement remedy 49, 50–1, 83, 95–6, 101–2, 119, 165n 144, 175, 198, 208, 322 Radin, MJ 102n 18, 120–4 Raz, J 12, 123–4, 147–8, 182n reasonable fee award 61, 65, 205–6, 212 recovery of debt action 153–7 case law Jervis v Harris 156 White & Carter 153–6 contractually-owed debt, limitation to 160 ‘legitimate interest’ requirement 153–6, 189, 201 mitigation obligation 154n 94 promisee’s ability to continue with performance 153 as substitution award 153–6 recovery under a deed award consideration and 161 ‘loss’ 161 reliance damages 19n 53, 91n 209, 93n 216, 97, 100, 104, 142, 144, 161, 321 expectation damages as proxy for 98–9, 100, 316 remedy: see legal remedy remoteness rule case law The Achilleas 225n 45, 229, 231–4, 235–6, 237, 238, 243, 245–6, 247 Bence 75–6, 166–7 GKN Centrax Gears 240 The Gregos 231–2 The Heron II 230, 231, 237, 238, 239, 246n 145, 256n 186 Horne 237 Jackson 230–1 John Grimes 235–6, 246 McElroy Milne 241 Nettleship 237 Out of the Box 236n 89 Parsons (Livestock) 239–40 Supershield 234–5, 236, 246 Sylvia Shipping 235, 246 Victoria Laundry 245–6 Wenham v Ella 241 causation/novus actus interveniens principle and 223–4: see also causation difference in value award 75–6, 94, 103, 166–7 fairness rider 237, 240–4, 245–7 implied undertaking rider 245–6, 247 mental distress and 31, 33 mitigation/avoidable loss rule and 252–3 non-pecuniary harm, as suggested basis for non-recovery rule 255–6 parties’ agreement on allocation of risk as basis 217, 229–30, 233–4, 236–40, 243–7 price of release award and 204–5, 225 reasonable contemplation/foreseeability test 167, 225, 231, 232, 236, 237–8, 240–2, 245–6, 251, 255 as restriction on compensatory liability (Hadley v Baxendale) 225, 227–8, 229–47 criticism of 217, 222 summary of 230–1 substitutionary and compensatory award distinguished 6, 133, 165, 166–7 Index restitutionary damages 64, 65, 208–9, 322 gain-based award distinguished 50 Reynolds, F 290–1, 305 rights-based theories of private law 8–11: see also legal rights/duties Robertson, A 11–12, 31n 37, 239–40, 241–2, 243, 245–6, 247: see also Nolan, D and A Robertson Robinson v Harman principle: see also compensation, definitions of; compensatory money award; factual detriment as measure of compensation; substitutionary vs compensatory award definitions/alternative terminology compensation or substitution for performance? 3–4, 24–5, 98 compensatory principle 18, 24, 26, 44n expectation measure 24, 98–9 as hybrid principle 13–14, 101 indeterminacy (purpose) 23, 24–5, 98, 99, 101–4, 180–1, 316–17 indeterminacy (scope) 23, 25–6, 99, 317 ‘loss’ 25, 101–2 as ‘next best thing to performance’: see ‘next best thing to performance’ ‘so far as money can it’ 25–6, 27, 162 exceptions 44–5: see also carriage of goods contracts; gain-based award; nominal damages; non-pecuniary harm, recovery for Fuller and Perdue’s challenge 98–104 expectation damages as proxy for reliance damages 24, 98–9, 100, 316, 321 legal right to performance 99 response to 100–1 policy considerations and 99 text 24 Rotherham, C 64, 203n 116, 205–6, 208–9, 322n 10 Rush, M 108n 48 Ruxley: see loss of amenity (Ruxley) sale of goods, award for breach of contract by buyer 277–8 Lazenby 278 WL Thompson 277–8 sale of goods, award for breach of contract by seller exceeding promisee’s factual loss 68–79: see also carriage of goods contracts case law Bence 75–6, 166–7, 279–80, 284–5 British Westinghouse 77–8, 87–9, 90, 249–50, 280–3, 308, 319 Clark v Macourt 3, 76–8, 86, 161–2 Hall and Pim 70–1, 161, 279 Jones v Just 69 333 Slater 73–5, 186–7, 279–80 Wertheim 72–3, 278, 283–4, 319 Williams Bros 69–70, 81, 161, 186, 278, 279, 300–1 compensatory award 282–3 cost of market substitute 185–6 defective goods (SGA 53(3)) 73–8, 279–83 deviation from compensation principle 78–9, 185–6 difference in value award 72–3, 74–5, 282 double recovery, prohibition 281–2 late delivery 71–3, 283–4 minimum cost test/cheapest way 74–5 mitigation/avoidable loss rule 77, 280–3 non-delivery (SGA 51(3)) 69–71, 278–9 policy considerations 78–9, 252, 279 post-breach benefits 185–6 remoteness rule 75–6, 78 Sale of Goods Act 1979 51(3) as measure, common law, relationship with 68–9, 165, 185–6 as substitutionary award 161–2 substitutive damages theory and (Stevens) 68 summary of case law 78–9 Sayer, J 115 Scott, Lord (extra-judicially) 41–2, 45–6 secondary right to repair as basis of compensatory award 3–4, 125–7, 168–9, 172–5 corrective justice and 12, 120–1, 174, 219–20 court-imposed nature of duty to pay alternative 6, 174, 218–22, 237, 257 enforcement of primary right to money distinguished 115–16 generation by infringement of primary right 6, 116, 124, 125, 221 ‘next best thing to performance’ and 174–5 as orthodox view 125, 217 parties’ agreement, relevance 170n 166, 237, 248, 254 Photo Production Ltd 12, 125, 134, 168–9, 172–3, 216, 220, 271–2 services, monetary award for breach of contract analogy with non-delivery of goods (SGA 51(3)) 165, 187 case law Force India 164–5, 187–8 Panatown 162–4 Regus 187, 188 White Arrow (difference in value award) 187, 188 as substitution award 161–5 Sharpe, R and S Waddams 62, 118n 87 Sherwin, E 120, 121, 122 Siebrasse, N 309n 99 Simpson, AWB 49 Smith, LD 101n 11, 134n 2, 152n 87, 203 334 Index Smith, S 10–11, 16–19, 79n 153, 82n 166, 127n 118, 144n 52, 170, 170n 168, 173n 176, 176n 186, 219n 11, 220, 221–2, 228n 53, 250n 166, 252, 284n 91 Southcott Estates (specific performance/ mitigation relationship) 307–12 court’s decision dissent 309–10 majority 308–9 factual background 308 mitigation/‘reasonableness’ relationship 311–12 specific performance constraints, impossibility of performance/ rectification 310–11 substitutionary and compensatory award, failure to distinguish 152, 175, 315 specific performance alternative coercive measures 136 civil law practice 136 as closest substitute for performance 179, 214, 310, 320 constraints claimant’s preference for monetary award 139 impossibility of performance/ rectification 310–11 passage of time 139 policy considerations 139–40 right and enforcement of right distinction 123–7, 146–8 supervision by court requirement 147 as continuing remedy 158 equitable origin 136–7 executory contract and 140, 142, 181n 4, 321–2 inadequacy of damages test 137–8 mitigation and 250n 166, 307–12 specific performance, case law Beswick 52, 137 Grant v Dawkins 158 Hasham v Zenab 144–5, 147 Johnson v Agnew 158–9, 160, 313–14 Pell Frischmann 139, 209–10 Rainbow Estates 137, 138 Semelhago 159–60, 308, 309–10, 311, 313, 314, 315 Southcott Estates: see Southcott Estates (specific performance/mitigation relationship) Tito 137, 138 Wroth 157–9 Wrotham Park 139–40 specific performance, monetary award in lieu of 157–60, 312–14: see also injunctions (prohibitory/mandatory) assessment at common law and in equity distinguished 152–3, 175 constraints 6–7, 310–11 date of assessment 157–9, 313 dependence on court’s jurisdiction to order specific performance 160 money awards in lieu of: see specific performance, monetary award in lieu of right to performance as basis 134–6, 144–5, 157, 160, 314 substitutionary and compensatory awards distinguished 152, 157–9, 175, 315 uncertainty of current status 138 standard of proof balance of probabilities 112, 120, 181–2, 193, 208, 223, 226, 265, 272, 298 The Glory Wealth 302–7 burden of proof 27–8, 80, 81–2, 250n 168, 266n 19, 268, 304n 71, 306, 308 Stapleton, J 223n 28 Stevens, R 70n 118, 76, 79, 92n 214, 110, 144n 52, 197n 88, 279, 280, 301n 58: see also cost of substitute performance award (general), substitutive damages theory and (Stevens) substitution for timely performance award 274–5 substitutionary vs compensatory award, distinctions: see also compensatory money award; cost of substitute performance award (general); difference in value award; price of release award; recovery of debt action; recovery under a deed award; services, monetary award for breach of contract anticipatory breach and 14, 28, 42, 144–5, 149–50, 301–2 coercive orders/substitutionary monetary award as continuum compensation for mental distress 34–5 cost of repairs award 266–8 factual detriment, relevance 5–6, 133, 151–2, 157, 160–2, 175–6, 177, 178, 321 historical background common law actions 150–1 equitable awards 151–3 mitigation/avoidable loss rule 6, 28, 133, 149, 165–6, 167, 217 normative significance of breach 6, 124, 149–50 remoteness rule substitutive vs reparative compensation 221–2 theoretical bases compared 3–4, 5–6, 148–77 terminological difficulties 2, 13, 27, 42, 65, 97, 104-22, 127-8, 163-4, 317, 319-20: see also compensation, definitions of; ‘loss’, variety of meaning/ambiguity; Robinson v Harman principle, definitions/alternative terminology Tettenborn, A 104, 107, 109–10, 200, 238, 241n 124, 243n 135, 244–5, 266 Index third party-related award, exclusionary rule basis of/circumvention 52, 54 judicial dissatisfaction with 54–5 privity rule 52 third party-related award, exclusionary rule exceptions Carriage of Goods by Sea Act 1992 (UK) 53 carriage of goods contracts (Dunlop/Albazero) 53–4 case law Albazero 53–4 Beswick 52, 54 Darlington 56 DRC v Ulva 60 Dunlop 53–4 Jackson 54 Linden Gardens 55 Panatown 55, 56–60, 273–6 post-Panatown 59 St Albans CC v ILC 53 Woodar 54–5 case law summarised 56 cost of substitution for timely performance award 60, 274–5 extension of Albazero exception 53–6, 59 Linden Gardens exception: see Linden Gardens exception (promisee’s right to recover third party’s loss on property contract) price of release award 276 recovery by trustee or agent 53 rule as exception 59–60 third party/insurance payments 89 Tilbury, M, M Noone and B Kercher 121 Todd, P 293n 34 torts claims compared 9, 12, 34, 91–3, 95n 224, 112, 114, 120, 146, 167 corrective justice analogy 134, 168–9, 174–5 Treitel, GH 76, 167, 280, 299n 48, 305 Treitel’s Law of Contracts 16, 53, 68, 69, 71–2, 104, 106, 142, 155, 156, 160, 185, 193, 212n 146, 231, 248n 154, 283, 295n 41, 301n 57, 305 unjust enrichment/profit from own wrong 48–9, 108n 48, 164, 298 Waddams, S 159: see also Sharpe, R and S Waddams Wallace, I 275n 56 Watts: see mental distress, changing attitudes to compensation for, Watts exceptions to financial detriment requirement Webb, C 10–11, 103n 21, 170n 168, 198, 284n 91 Weinrib, E 9n 18, 18, 70n 118, 79n 153, 102n 17, 197n 88, 219n Wertheim (difference in value) 72–3, 278, 283–4, 319 White Arrow (difference in value award) 27–8, 165, 187, 188, 213 intention to cure defect, relevance 197 Williams Bros (difference in value award) absence of detriment to claimant, relevance 69–70, 81, 186, 278, 279 compensatory principle and 70, 300–1 Williams, T 150 Wilmot-Smith, F 27n 13, 164n 137 Winterton, D 113n 63, 203n 116, 294n 37, 305n 83, 322n Winterton, D and F Wilmot-Smith 164n 137 Worthington, E: see McKendrick, E and K Worthington Wright, D 201n 110 Wright, R 223n 31 Wrotham Park award as compensation: see also price of release award gains to defendant (gain-based award) 65, 119 impossibility of specific performance 283n 90 lost factual benefits 63, 118–19 lost opportunity to bargain for release 62 lost opportunity to seek injunction 62–3 lost profits 64 lost right to performance 63 non-pecuniary loss 63 policy considerations 61, 64, 139–40, 207 summary of case 60–1 transfer of value (restitutionary damages) 64, 65, 208–9, 322 Yihan, G Vercoe (breach of confidentiality) as price of release award 67–8, 210 as substitution for performance 210, 283 summary of case 67–8 335 246 Zakrzewski, R 124–7, 135n 6, 320 Zipursky, B 219, 221, 222 Zipursky, B and J Goldberg 219n 12, 221, 222