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REMEDIES OF CONTRACT
1. DAMAGES
DAMAGES
The award of damages is the common law
CATEGORIES OF
DAMAGES
a. Substantial Damages
Pecuniary / monetary compensation:
a. Substantial Damages
Damages has to be proved.
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Held:
b. Nominal Damages
In exceptional situations, a plaintiff may be
b. Nominal Damages
Nominal damages may also be awarded:
merely to acknowledge that his right
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The defendant said that their re entry of the
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Held:
As there is no evidence as regard to that,
the judge gave judgment in favour of Plaintiff.
Since, there are no evidence as to the
damages suffered by plaintiff.
Therefore, nominal damages of RM1 and costs
were awarded to the Plaintiff.
c. Exemplary or
punitive damages
Exemplary damages are also known as
c. Exemplary or
punitive damages
Awarded only in exceptional circumstances
Hadley v Baxendle
(1854) 9 Ex 341
Plaintiff were mill (kincir angin) owner in
Gloucester.
They engaged the Defendant, a carrier to take
a broken crankshaft to Greenwich and asked
for a new one.
Defendant (carrier) promised that it would be
there for following day, but Defendant had
delayed in transporting the crankshaft.
Consequently, the replacement was not
delivered when it should have been. The mill
remain idle for a longer time.
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The Plaintiff sued for damages for the
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Held:
Limb-damages arising
naturally )
a) The situation that when the damage
or loss
caused to the injured party arose
naturally in
the usual course of things from the
breach.
To recover that damages, the Plaintiff has to
Limb-damages arising
naturally )
Illustration (f) Section 74:
Limb-special
damages)
b) the parties knew, when they made the
(V)
was a laundry company
(launderers & dryers). The Plaintiff contracted
to buy from a Defendant a boiler which is to be
used in his business. The defendant (N) agreed
to sell to V a secondhand boiler and to deliver
on June. But the boiler was not delivered until
8th Nov. The Defendant also knew that the
boiler was required for the business and
for immediate use.
Continue
Held:
The laundry company was entitled to
recover for the profits for ordinary
laundry as N must foreseen their loss if
there was delay.
and not entitle for dyeing work.
HOWEVER in Section
In summary:
The object of an award to damages is to place
LIQUIDATED DAMAGES
Sometimes, parties may fix the amount
Example of Clause in
Agreement
DEFAULT BY PURCHASER
In the event the Purchaser fails to pay the Balance
Sum as provided in Clause 3 of this Agreement for
any reason whatsoever, the Vendor shall unless
there are express conditions hereinafter
contained to the contrary, be entitled to
forfeit the deposit referred to in Clause 1 above or
such other amount of money as may be
hereinafter stipulated (hereinafter referred to as
the forfeitable sum) as agreed liquidated
damages
Example:
In the Sale and Purchase Agreement between
Duty to mitigate
losses
Explanation to Section 74
In estimating the loss or damages
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2. SPECIFIC
PERFORMANCE
1.
Specific Relief Act is given(b) by ordering a party to do the very act which is
under an obligation to do (Specific Performance).
(c) By preventing a party from doing that which he
is under an obligation not to do. (Injunction)
WHAT IS SP?
Section 21(1) Specific Relief Act :
The jurisdiction to decree specific
performance is discretionary
The court is not bound to grant any such
relief merely because it is lawful to do so;
But the discretion of the court is not
arbitrary but sound and reasonable,
guided by judicial principles and
capable of correction by Court of
Appeal.
The
S. 11 (1) (C)
pecuniary compensation for its non-
[1969]
SP was granted to enforce a promise to sell
certain shares not available in the open market.
DUNCUFT V ALBRECHT ( 1841)
SP had been granted for an agreement for the sale
of railway shares, which were limited in numbers
and not always to be in the open market.
Continue.
5. Section 11(2),
when there is a breach of a contract to
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(f)A contract made by or behalf of a corporation
created for special purposes.
(g) A contract the performances of which
involves the performance of a continuous duty
exceeding over a longer period than three
years from its date
(h)A contract of which material part of the
subject matter supposed by both parties to
exist, has, before it has been made, ceased to
exist.
Furthermore, in s. 18
(3):
Specific Relief Act gives power to the
3. INJUNCTION
1. WHAT IS
INJUNCTION?
An order of Court to restrain the doing,
injunction:
The Plaintiff must have interest to protect;
Damages must be shown not to be
A. Temporary
injunction
Section 51(1) Specific Relief Act
Temporary injunctions are such as are to
continue until a specified time, or until the further
order of the court.
They may be granted at any period of the suit
Injunction
The purpose is to preserve the status quo
of the parties, pending resolution of a legal
action.
injunction/interlocutory injunction:
An interlocutory injunction is
granted to maintain the status quo,
if there were serious questions to be
tried.
b. Perpetual
Injunction
Section 51(2) Specific Relief Act
Perpetual injunction
Kwong
Plaintiffs the tenants.
The Defendant was the landlord
One
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The Plaintiff had an uninterrupted flow of water.
The water works found that common pipe was badly
Situations where
Injunction cannot be
Granted
Section 54(f)Specific Relief Act
Exception:
Section 55 Specific Relief Act
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Illustration (c) Section 55
Kuala Lumpur.
The respondent were a well known singer from Hong
Kong. The respondent had agreed to appear and
sing at the appellant's night club for a few days.
Clause 15 of the said contract provided that if the
respondent breached any of its term, the appellant
can terminate the contract, and in that event of such
termination, respondent was not to perform in Kuala
Lumpur for three months (fixed period) thereafter.
Continue.
The respondent declined to honor his contract and
4. QUANTUM MERUIT
Where a Plaintiff sues for unspecified amount for
De Bernady v Harding
The P was an agent of the D. An agreement
5. Rescission of
Contract
Section 40
When a party to a contract has refused to
perform, or
Disabled himself from performing, his
promise in its entirely
The promisee may put an end to the
contract, unless he has signifies by word
or conduct his acquiescence in its
continuance
Section 66
Note: This Notes and Copyright therein is the property of Madam Norazla Abdul Wahab and
is prepared for the benefit her students enrolled in the MGM3351 course for their individual
study. Any other use or reproduction by any person without consent is prohibited.