Difficulties with Damages as a Ground for Specific Performance
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This article discusses the granting of specific performance and the rule that specific performance will not be awarded where damages are an adequate remedy. It argues that where damages are difficult to calculate this may make damages an inadequate remedy, depending on whether the difficulty is intrinsic to the contract and its circumstances and the circumstances of breach, or extrinsic, where the difficulty is essentially evidential. The article concludes that damages may be found to be inadequate where the quantification difficulty is intrinsic, but not where it is merely extrinsic.Cite
Unjust Enrichment
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The claims for damages because of liability are unavoidable in construction project. The paper presents the definition and origin of the claims for damages because of liability. We should rationalize the train of thought of the claims for damages, pay great attention to and try to do it well in project management.
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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 defined 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 wrong. 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 (e.g. 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 scrutinise the arguments in defence 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 principles.
Punitive damages
Causation
Equity
Breach of contract
Cause of action
Pain and suffering
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In intellectual property cases,it is often difficult to determine the exact amount of damages.Statutory damages are often calculated as a multiple of the price for the use of the property.In fact,statutory damages are applied to the vast majority of intellectual property damages in China.There are some problems associated with the application of statutory damages including vague application standards,using different standards and procedures for similar cases,providing multiple compensation for the same cause of action,etc.In order to resolve these problems,judges must revise the conditions for statutory damages,especially those concerning subjective determinations,burdens of proof,and discretion.Additionally,the function of punitive compensation should be permitted when statutory damages are granted.
Punitive damages
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In the face of difficult-to-quantify private-law harms, courts commonly apply standards of reasonableness in assessing whether asserted damages have been proven with adequate certainty. In contract cases in particular, courts have a historical reputation for being demanding in applying a requirement of “reasonable certainty” for compensatory damages. Contract law’s reasonable certainty standard provides useful lessons for how courts might approach the award of reasonable royalty damages in patent law. Quite generally, contract law’s reasonable certainty standard indicates how courts can be demanding but also flexible in determining what constitutes competent evidence for a difficult-to-quantify harm. More specifically, judicial approaches to implementing the reasonable certainty standard suggest that, in calibrating and enforcing evidentiary standards for reasonable royalty damages, courts might helpfully consider the blameworthiness or egregiousness of parties’ conduct, the state of the art or of available evidence for proving damages, and the amount of damages alleged.
Certainty
Legal certainty
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Breach of contract
Data breach
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Punitive damages and class actions can be viewed as sharing a common economic function - creating optimal deterrence. This is a function that these remedies can best pursue in different domains. When a tortfeasor causes harm that affects many victims, the preferred remedy is a class action. This is especially so when the amount of compensatory damages are high. There are scenarios, however, in which imposing punitive damages represents the best solution. We identify some of these scenarios to suggest the proper domains of these two remedies. Finally, we identify situations where a combined use of these two remedies is desirable. We suggest that when the amount of losses suffered by victims is so small as to preclude a class action due to transaction costs and inactivity, it may nevertheless be useful to combine punitive damages with a class action. Punitive damages should be awarded within a class action if and only if there are frictions that could prevent the injured party from taking legal action.
Punitive damages
Deterrence
Deterrence theory
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Gain-based damages for breach of contract are often viewed as anomalous, and lacking a clear rational basis. This article seeks to provide a theoretical basis for the requirement to disgorge profits gained through breach of contract. By looking at the core contractual obligation, it can be seen that a contracting party has two ways in which they can fulfil their promises. They can pay damages where they fully compensate the other party, or they can perform. Where damages are inadequate, the contracting party must perform. Failure to perform in such circumstances should be prevented, and it is argued that disgorgement of profits is a suitable deterrent to such contract breakers. It is suggested that the law should act in this way to protect the facilitative institution of contract.
Breach of contract
Obligation
Institution
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This paper deals with legal damages if losses of chances are at stake. In response to disparate ad hoc rules that have emerged from legal practice in Europe, the present paper proposes a unifying principle to handle such cases. Quite generally, the purpose of a damages award is to compensate the claimant and should be based on the difference in value between due performance and actual performance. To cope with limited observability, it is suggested to still award the difference though on average over the observed event. The paper calculates damages in line with this general principle. The proposed damage scheme is shown to fully compensate the victim and to provide efficient incentives for precaution, be it that multiple injurers act non-cooperatively or in concert, even if losses of chances are at stake.
Observability
Value (mathematics)
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Breach of contract
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