Measuring Damages in the Law of Obligations : The Search for - Harmonised Principles

Informationen zum Autor Sirko Harder is a Senior Lecturer at Monash University, Melbourne. Klappentext 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. Zusammenfassung This book challenges certain differences between contract! tort and equity in relation to the measure (in a broad sense) of damages. Inhaltsverzeichnis 1: IntroductionI The Law of Obligations II The Law of Damages III Desirability of a Harmonised Measure of Damages IV Possibility of a Harmonised Measure of Damages V The Methodology Adopted in this Book Part 1: Remoteness of Damage 2: The Present Remoteness Test in Tort I Terminology II The Foreseeability Criterion in Negligence III Damage Versus Risk IV Degree of Foresight Required V The'Thin Skull' Rule VI The 'Scope of the Duty' Concept VII Torts other than Negligence 3: The Present Remoteness Test in Contract I Hadley v Baxendale II Victoria Laundry III The Heron II IV Parsons V SAAMCO VI Brown v KMR Services Ltd VII Jackson v Royal Bank of Scotland plc VIII The Achilleas IX Conclusion 4: A Uniform Remoteness Test throughout the Common Law I Contract and Tort Compared II Reforming both Contract and Tort III Reforming Tort Only IV Aligning Contract with Tort A The Fairness Argument B The Efficiency Argument C Objections to the Efficiency Argument i Prohibitive Costs ii Monopoly Situations iii Strategic Dilemma for Reliable Carriers iv Possibility of Menu D Preventing Unreasonable Reliance upon Performance E Contractual Liability is Generally Strict F Conclusion 5: Remoteness of Damage in Equity I Misapplication of Trust Property II Breach of an Equitable Duty of Care and Skill III Breach of Fiduciary Duty Part 2: Non-Pecuniary Loss 6: Non-Pecuniary Loss in Tort I Loss Resulting from Personal Injury II Physical Inconvenience or Discomfort III Loss of Reputation IV Mental Distress V Bereavement 7: Non-Pecuniary Loss in Contract I Overview of the Present Law II The General Bar to Compensation III The Exception for Personal Injury IV The Exception for Physical Inconvenience V The'Object of the Contract' Exception VI Loss of Reputation VII Need for Reform VIII Defensibility of the General Bar to Compensation A Avoiding Punishment B Avoiding Excessive Awards C Ge...

Product details

• Authors: Harder, Sirko Harder
• Publisher: Hart Publishing
• Languages: English
• Product format: Hardback
• Released: 12.07.2010
• EAN: 9781841138633
• ISBN: 978-1-84113-863-3
• No. of pages: 330
• Dimensions: 165 mm x 244 mm x 27 mm
• Subject: Social sciences, law, business > Law