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Published: Fri, 02 Feb 2018
Exploring Remedies To Breach Of Contract
. In a contract, there is a breach of contract. The breach of contract is the failure to keep the promises or agreement or even fail to up to his or her responsibilities of the contract. It can be breach as a whole or even part of it. A breach of Contract would consist of three very important remedies. These remedies are damages, specific performance, and injunction.
It is one of the remedies in a contract. There is damages in a contract which is cause by the losses or costs which incurred because of another party or person’s wrongful act. Damages are a payment in one form or a remedy which is provided by the common law. This is so that to provide financial compensation or the loss or debt where there has been a breach of contract. In the breach of contract, the main purpose of having damages is because there is a need to protect the promisee’s expectation interest and also in the promisor’s performance. Contractual damages is also in the breach of contract. When there is a breach of contract, there are losses suffered. Contractual damages are not suppose to be a punishment for the party or person who has fail to perform what is agree in the contract. The court does not consider the defendant’s ability to pay in ensuring the measure of damages. The plaintiff who is the person who brings suit to the court which is opposed to the defendant would have expectation interest which is measure by difference money damages when there are cases which make the party unable to perform the agreements which are made in the contract. The general measure of damages would be the difference between the contract price and the cost of construction by another builder.
2.1.2 Specific Performance
It is also another important remedy in the breach of contract. It is a court order which requires the defendant to perform his act which is already promise in the contract. This remedy is commonly used in the form of judicial process or order which requires the person or the persons to whom it is directed to do something in particular or refrain from doing another act concerning information or real property. The remedy specific performance is usually used to establish a previously established transaction. Specific performance is the most effective remedy in protecting the expectation interest of an innocent party in the contract. The court would practice its act according to its own judgement not to decree specific performance where damages provide an adequate remedy. Specific performance will be refuse if the terms of the contract are uncertain. The court would also have the discretion to refuse specific performance where the granting of specific performance could cause undue hardship to the defendant. Since damages often cannot compensate a person for the inability to own a specific piece of real property where the land being regarded as unique, the court of equity had developed the remedy of specific performance. Specific performance which is the remedy in a breach of contract is often guaranteed through the remedy of a right of possession. This would give the plaintiff the right to take possession of the property in dispute. When damages are not a suitable remedy, then specific performance are granted. It will all depend on whether if it is appropriate in the circumstances of the case to have the remedy of specific performance. For example, company A wants to build a restaurant in another location and has made an agreement with the franchisor. Later, there were told that the franchisor would want to build and locate it at another location. Company A could take action towards the franchisor for having breach of contract. This would eventually force the franchisor to stay true with the agreement to the terms of contract.
Besides damages and specific performance, injunction is another type of remedy in the breach of contract. An injunction is the order of a court which requires the person, corporation, or even the government entity to stop doing something and also prevent something from happening in the future. There are different types of injunction which are interlocutory injunction and mandatory injunction. Interlocutory injunction is used to maintain the subject matter of a pending suit by a party status quo. For example, Rathi had made a sale and purchase agreement of a car with Nirosha. However, Nirosha had decided to sell the car to a third party and not to Rathi. An interlocutory injunction can be can be file by Rathi in order to maintain the status quo of the car while waiting for the judgement of the court. Mandatory injunction is a court order which requires something to be done. This means that a person, a company or even the governmental unit would be compel by the court to do something. For example, if restaurant T has a site about the restaurant but another restaurant which is restaurant K follows whatever that is being offer by restaurant T to their website would be a violation of copyright notices. The court would have to issue an injunction to prevent the violation from happening.
2.2 Conclusion of Breach of Contract
. Breach of Contract is actually cause by the terms which are not clear in the contract. If it is left undecided, the other person or party could be dissatisfied. The other party could even lose the opportunity or chance to improve in their business and there is a possibility of getting a lawsuit if there is a breach of contract. It is vital to make sure that the parties are clear with the terms and regulations in the contract so that there will not have a breach of contract
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