Remedies For Breach Of Contract Research Articles

Breach of Contract: Automatic and Unilateral Price Reduction

AbstractThe recent reforms of the French Civil Code have also regulated remedies for breach of contract, by introducing price reduction as a general instrument that can be applied to all contractual types. Firstly, the article analyses the harmonisation projects and regulations on which the French reform claims to be based, for the purposes of verifying whether the French legal framework only reproduces solutions already tested or whether it is innovative with respect to such models. This study highlights the introduction of innovative solutions through which price reduction is achieved. Whilst price reduction is usually ordered by the court, following a claim by the non-breaching creditor, under the French model the price reduction remedy does not require the court’s intervention as it can be performed directly by the creditor: this is an automatic and not a court-based remedy. Secondly, the article also analyses whether the same outcome that is obtained through the automatic price reduction can also be achieved through the use of other legal instruments. This article focuses on a comparative law analysis with the common law system with respect to compensation for damages under English law. With respect to the civil law models, the article examines the Italian model in which parties generally resort to actions for compensation and the exception of partial breach.

Studies in the Contract Laws of Asia. Volume I: Remedies for Breach of Contract. Ed. by Mindy Chen-Wishart, Alexander Loke and Burton Ong. – Oxford: University Press 2016. XLII, 486 S.

Studies in the Contract Laws of Asia. Volume I: Remedies for Breach of Contract. Ed. by Mindy Chen-Wishart, Alexander Loke and Burton Ong. – Oxford: University Press 2016. XLII, 486 S.

UNA CRÍTICA A LA IDEA DE INCUMPLIMIENTO EFICIENTE DESDE EL DERECHO DE CONTRATOS

The theory of efficient breach of contract is one of the core components of the economic analysis of contract law. This paper makes a review of this theory. On this respect, and starting from an instrumentalist perspective, consistent with law and economics, the paper claims that efficient breach is an inadequate approach towards the analysis of remedies for breach of contract.

Efficient Material Breach of Contract

In an environment in which sellers can reduce the probability of defective delivery through cooperative investment, and in which enforcement of default remedies for breach of contract is imperfect, an optimal performance standard grants buyers the option to reject goods for some but not all defects, in other words, when the delivery is sufficiently defective and the seller is said to be in “material breach” of contract. This optimal performance standard implements efficient cooperative investment more often under a policy that, in addition, allows buyers to collect compensation for nondelivery of the good (upon rightful rejection) than a policy that limits buyers’ compensation to the recovery of the price. Although contracts with liquidated damages (i.e. a customized compensation function) can solve the investment problem as long as court enforcement is not too imperfect (in which case optimal liquidated damages are excessive and likely not enforced), the doctrine of material breach with an option to reject performs well as a default rule.

Behaviorally Efficient Remedies An Experiment

Under common law, the standard remedy for breach of contract is expectation damages. Under continental law, the standard is specific performance. The common law solution is ex post efficient. But is it also ex ante efficient? We use experimental methods to test whether knowing that non-fulfilment will only lead to damages deters mutually beneficial trade. The design excludes aversion against others willfully breaking their promises. We find that there is indeed less trade if specific performance is not guaranteed, provided the preference for the traded commodity is sufficiently pronounced.

A Comparative Study of Damages and Price Reduction Remedy for Breach of Sale Contract under CISG, English and Iranian Laws

<p class="cc">In order to discourage people from breaching a contract and also to compensate the injured party for any losses, the law provides several remedies for breach of contract. One of these remedies is price reduction. In this study, we aims to compare the rules of Iranian law for price reduction remedy with those provided by Convention on Contracts for the International Sale Of Goods (CISG), and English law. English law has set detailed rules for rewarding damages for breach of contract , while Iranian law has generally-defined rules. The legislator has not determined not only the types of damage, but also the criteria for assessment of the damage. The remedies provided for price reduction in the CISG for breach of contract has been adapted to requirements of international trade, while In Iranian law there is no clear rules for this purpose, except three rules including a) Giving property to the buyer instead of money, (b) Compensation for loss of legitimate business involved to the buyer, and (c) Compensation for delayed payment to the buyer.</p>

The Efficient Breach Theory under Jordanian Civil Law

This study examined the ‘efficient breach’ theory and its possible application under Jordanian Civil Law. The theory says the promisor has the right to breach a contract and pay damages whenever his profit from breach exceeds his expected profits from performance. As a prerequisite for its application, the theory requires the general remedy for breach to be the payment of damages, rather than forced performance. Thus, the main area for its application is the common law system, since it favours damages as a primary remedy. This study reached the conclusion that the theory cannot work under Jordanian Civil Law, where the primary remedy for breach of contract is specific performance, that forces the promisor to complete the contract. In addition, it contradicts the good faith principle that Jordanian law is based upon, amongst other principles, and goes against the history of Jordanian legal rules.

The Efficiency of a Disgorgement as a Remedy for Breach of Contract

The Efficiency of a Disgorgement as a Remedy for Breach of Contract

English Contract Law and the Efficient Breach Theory

The ‘efficient breach’ theory holds that remedial orders, namely specific performance, compensatory damages and restitutionary damages for wrongs, should be designed in such a way as to maximize the production of efficient outcomes. For lawyer-economists, the goal of creating rules of law is to maximize the achievement of a particular outcome, that is, economic efficiency. This paper seeks to identify the major problems of adopting the efficient breach theory in English contract law. It also aims to explain and justify the existing scheme of remedies for breach of contract in the English contract law on (non efficiency-based) normative grounds.

Better than Fuller: A Two Interests Model of Remedies for Breach of Contract

The attempt to combine the contractual interests properly so-called with the restitution interest in the Fuller and Purdue three interests model of remedies for breach of contract is ineradicably incoherent. Stimulated by reflection on contemporary restitution doctrine’s understanding of the quasi-contractual remedies of recovery and quantum meruit, this paper argues that the complete elimination from the law of contract of the restitution interest, which incorporates those remedies into the three interests model, would improve both the coherence of the model of contractual interests and the substantive law of remedies for breach.

Specific performance as a primary remedy in the South African law of contract

Specific performance is a primary remedy for breach of contract available for the aggrieved party. This order emphasises the performance of contractual obligations. Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. The discretion must be exercised judicially and does not confine on rigid rules. Courts decide each case according to its own facts and circumstances. Plaintiff has a right of election whether to claim specific performance from the defendant or damages for breach of contract. The defendant does not enjoy any choice in this matter. As a general rule, specific performance is not often awarded in the contract of services. However, recent developments have demonstrated that specific performance will usually be granted in employment contracts if there is equality of bargaining power among contracting parties and such order will not produce undue hardship to the defaulting party. Public policy generally favours the utmost freedom of contract and requires that parties should respect or honour their contractual obligations in commercial transactions. Public policy is rooted in the constitution and can sparingly be used to strike down contracts. Specific performance should not continue to be a primary remedy for breach of contract. Contracting parties should be allowed to resile from the contract and use damages as a remedy for breach of contract.

Systemic and Topical Mapping of the Relationship of the Draft Common Frame of Reference and Arbitration

The work endeavors to blaze a trail to the uncharted relationship of the most meaningful recent product in the area of European private and commercial law – the Draft Common Frame of Reference (DCFR) – and international commercial arbitration. The focus is on three areas of private and commercial law – i.e., sales, franchise and secured transactions (collateral) law (systemic mapping) – and on the specific issues of culpa in contrahendo (liability for breaking the negotiations), remedies for breach of contracts and force majeure (topical mapping). The main findings of the paper are the following:First, as arbitration of sales disputes has become quite normal by now, the DCFR – especially the six-volumes of Comments thereto (Oxford University Press publication) – could turn into a valuable tool of orientation for laws of Europe. Secondly, Europe could learn from the rich experiences of the United States as far as the arbitration of franchise and financial contracts (including disputes related to self-help repossession) is concerned. This is of importance because the DCFR is recommending introduction of business format franchise as a nominated contract and out-of-court enforcement (self-help) as important building block of a new secured transactions law for Europe; both essentially stemming from the United States.Thirdly, primarily due to the backpedaling of the European Union, however, the advancement of the DCFR as a tool for arbitrators is doomed to be very slow. One of the problems is that, save some isolated efforts, nobody is really working on spreading the information on the DCFR, in particular in arbitral circles. Fourthly, the DCFR (esp. the Comments) might prove to be, however, a valuable tool for comparatively oriented scholars and for teaching European private and commercial law. Last but not least, perhaps the most important contribution of the DCFR are enshrined in Book IX and X, the two clearly most forward-looking parts of this soft law instrument. Inherent in these are two important recommendation for Europe: while the message of Book IX is that Europe should embrace the unitary model of secured transactions law originating in Article 9 of the Uniform Commercial Code, Book X stresses the need of the introduction of the concept of ‘trust.’

REMEDIES FOR BREACH OF CONTRACT. A COMPARATIVE ANALYSIS OF THE PROTECTION OF PERFORMANCE

Rowan, Solene. Remedies for breach of contract. A comparative analysis of the protection of performance. Oxford, Oup, 2012, 265 pp.

Importance & Significance of Damages as a Remedy for Breach of Contract

Where a party performing a contract does not do so to the standard required by the contract or within the time frame set, that party is said to have committed breach of contract. A contract, being a fountainhead of a correlative set of rights and obligations for the parties would be of no value, if there were no remedies to enforce the rights arising thereunder. The party committing breach of contract is known as the ‘guilty party’ and the other party is known as the ‘injured’ or ‘aggrieved’ party. The latin maxim ‘ubi jus, ibi remedium’ denotes ‘where there is a right, there is a remedy’. The word ‘damages’ means monetary compensation for loss suffered. Whenever a breach of contract takes place, the remedy of damages is the one that comes to mind immediately as the consequence of breach. A breach of contract may put the aggrieved party to some disadvantage or inconvenience or may cause a loss to him. The court would desire the guilty party to accept responsibility for any such loss of the aggrieved party and compensate him adequately. The quantum of damages is determined by the magnitude of loss caused by the breach. Damages are meant to compensate the injured party for any consequences of the breach of contract. The underlying principle is to put the injured party financially as near as possible, into the position he would have been in had the promise been fulfilled.

Judicial Efficiency, Incomplete Contract and Self-fulfillment

From the perspective of the economics of law, the ruling on the first guiding case of China i.e. jump-dealing case has great breakthrough significance. It gets rid of the constraint of the hypothesis of traditional contract law on complete contracts, encourages the self-fulfillment of incomplete contract from the logic starting point of incomplete contract, highlights the incentive function of the remedy for breach of contract and emphasizes that the function of contract law is aimed to improve transaction efficiency and optimize resource allocation.

Solène Rowan, Remedies for Breach of Contract. A Comparative Analysis of the Protection of Performance, Oxford: Oxford University Press, 2012, 265 pp, hb £60.00.

The Modern Law ReviewVolume 77, Issue 3 p. 513-516 BOOK REVIEW Solène Rowan, Remedies for Breach of Contract. A Comparative Analysis of the Protection of Performance, Oxford: Oxford University Press, 2012, 265 pp, hb £60.00. Vanessa Mak, Vanessa MakTilburg University.Search for more papers by this author Vanessa Mak, Vanessa MakTilburg University.Search for more papers by this author First published: 01 May 2014 https://doi.org/10.1111/1468-2230.12077 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Volume77, Issue3May 2014Pages 513-516 RelatedInformation

Deliberate Breach of Contract and Consequences for Remedies: Exploration of a Neglected Area in the Law of Contract

This contribution argues that motive matters in cases of breach of contract. More specifically, deliberateness of breach of contract matters in the application of remedies for breach of contract. This comparative contribution focuses on US law and English law, because the discussion on deliberate breach is most explicit in these jurisdictions. Nevertheless, references to continental European jurisdictions and to soft law instruments with a strong ‘continental’ nature such as the Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR) are also included. Sometimes, in the jurisdictions and instruments mentioned, deliberateness of the breach is considered to be relevant, but more often the element of deliberateness is neglected or even denied when disappointed creditors seek remedial relief. This contribution pleads for a more consistent approach to the phenomenon of deliberate breach of contract and for improving the position of the creditor in terms of access to remedies in contract. Creditors should have easier access to performance of the contract and termination. Barriers to expectation damages in terms of burden of proof and foreseeability should be lowered. Creditors should have access to account of profits. Penalty clauses should be upheld and not be subject to mitigation in case of deliberate breach of contract, and debtors should not be able to rely on exclusion or limitation clauses in case of deliberate breach of contract.

The misrepresentation as a reason of rescission of contract

Sometimes a person may enter into a contract as a result of a statement made to him which is false. If the statement is a term of the contract he will have a remedy for breach of contract. If the statement is not a term of the contract it is called a mere misrepresentation, and the consequence is rescission of contract. A misrepresentation is an untrue statement of fact which is one of the causes which induces the contract. A misrepresentation is statement, or conduct, which conveys a false or wrong impression. A contract may be rescined on the ground of misrepresentation even if innocent. An innocent misrepresentation is one made with reasonable ground for believing it to be true, as where an honest mistake is made. The types of misrepresentation are various. Acording to the Obligation Act it is not any misrepresentation cause the rescind of contract, but only the importance one. The importance misrepresentations are: the error in supstantia and error in personae if the contract is made bearing in mind intuit personae contract. This paper explanes different kinds of misrepresentation giving some proposal for legal interpretation of the provisions of the Obligation Act. The misrepresentation means an untrue statement of facts, made by one party to the other in the course of negotiating a contract, that induces the other party to enter into the contract. The person making the misrepresentation is called the representor, and the person whom it is made is the representee. A false of fraudulent misrepresentation is one made with knowledge of its falsehood, and intended to deceive. In the case of fraudulent misrepresentation representor did not honestly believe in the truth of his statement, which is not the same as saying that he knew it to be false. A negligent misrepresentation is one made with no reasonable grounds for believing in to be true. An innocent misrepresentation is one made with reasonable grounds for believing in to the true, as where an honest mistake is made. A fraudulent misrepresentation is actionable as a tort. When a person has been induced to enter into a contract by misrepresentation, he may in general either (1) affirm the contract and insist of the misrepresentation being made good, if that is possible, or (2) rescind the contract if it is still executory, and if all parties can be restored to their original positions, or (3) bring an action for damages, or (4) rely upon the misrepresentation as a defense to an action on the contract. A contract may be rescinded of the ground of misrepresentation even if innocent. Specific performance will not be decreed if a definite untrue representation has been relied on. It is clear that the claim for damages for fraudulent misrepresentation is a claim in tort. So the general governing rule is that the plaintiff should be restored to the position he would have been in if the representation had not been made. In the article is also analyzed comparative law related on misrepresentaton.

The effect of time on default remedies for breach of contract

Among default remedies for breach of contract, expectation damages are believed superior to property rules such as specific performance since they allow the promisor to breach inefficient contracts when renegotiation is economically infeasible. We examine whether the promisor's ability to accurately determine when to breach is maintained when taking into account the value of time that distinguishes between immediate performance and paying damages in court. We show that if prejudgment interest does not equal the promisor's subjective value from time (e.g. if the court uses the promisee's interest rate to fully compensate him), the promisor's breach decision will be distorted. When renegotiation is feasible this problem of excessive breach is mitigated, however asymmetric information about discount factors can lead to a renegotiation process that is doomed to fail. Punitive damages behave similarly. Specific performance without ancillary monetary awards always creates a pie for division between the parties. Ancillary awards for delay are unlikely to change this, but ancillary awards for partial breach make specific performance behave more like expectation damages, although to a lesser degree.

A Study on the Legal Explanation and Cases of Remedies for Breach of Contract by the Buyer under CISG

A Study on the Legal Explanation and Cases of Remedies for Breach of Contract by the Buyer under CISG