- •§1. Place op contract in jurisprudence. 3
- •§ 2. Obligation.
- •§2. Place of contract in jurisprudence. 5
- •§2. Place of contract in jurisprudence. 9
- •§ 2. Acceptance must he absolute, and identical ivith the terms
- •§ I. Agreement,
- •§ 3. II proposal which has not been accepted does not affect the Till accept-
- •§ 5. It proposal may lapse otherwise tJian by revocation as
- •§ 6. Proposal and Acceptance need not necessarily he written Contracts
- •§ 7. A proposal need not be made to an ascertained person,
- •§ I. Contracts of Record.
- •§ 2, Contract under Seal,
- •§ 3. Simple Contracts required to be in writing.
- •§ 4. ConsideItATiaN.
- •§ I. Political or Professional Status,
- •§ 2. Infants,
- •§ 3. Married women.
- •§ 4. Corporations.
- •§ 5. Lunatic and drunken persons.
- •§ 2. MlSbepbesentation.
- •§ 3. Fraud.
- •§ 4. Duress.
- •§ 5. UamuE Influence.
- •§ I. Nature of Illegality m Contract.
- •§ 18 Upon Stock ExchiEknge transactions is well summarised in the
- •§ 2. Effect of Illeoalitt upon Contracts in
- •§ I. Assignment by act of the parties.
- •§ 2. Assignment of contractual rights and liabilities by
- •§ I. Froof of Document,
- •§ 2. Evidence as to /act cf Agreement.
- •§ 3. Evidence as to the terms of the Contract,
- •§ I. General Rales,
- •§ 2. Rvlea 0/ Law and Equity as to Time and Penalties,
- •§ I. Waiver.
- •§ 2. Svhstituted Contract
- •§ 3. Provisions for DischcMrge,
- •§ 1. Position op pabties whebe a Contbact
- •§ 2. Forms of Discharge bt Breach.
- •§ 3. Eemedies fob breach of Contract.
- •§ 4. DiSghaboe of RiOht of AcTion abisiNa
§ 3. Eemedies fob breach of Contract.
Remedies
for breach.
Having endeavoured to ascertain the rules which govern
the discharge of contract by breach, it remains to consider
the remedies which are open to the person injured by the
breach.
If the contract be discharged by the breach, the person
injured acquires or may acquire, as we have seen, three
distinct rights: (i) a right to be exonerated from further
performance ; (2) a right, if he has done anything under the
contract to sue upon a quantum meruit, a cause of action
distinct from that arising out of the original contract, and
based upon a new contract originating in the conduct of the
parties ; (3) a right of action upon the contract, or term of
the contract broken.
But we are now no longer specially concerned with that
breach of contract which amounts to a discharge : we may
therefore consider generally what are the remedies open
to a person who is injured by the breach of a contract made
Damages, with him. They are of two kinds : he may seek to obtain
damages for the loss he has sustained ; or he may seek to
obtain specific performance of the contract which the other
party has refused or neglected to perform.
But there is this difference between the two remedies:
every breach of contract entitles the injured party to dam^ages,
though they be but nominal ; but it is only in the case of
certain contracts and under certain circumstances that
specific performam.ce can be obtained.
We do not propose to treat of these remedies otherwise
than in the most general way, for the matter is one which
barely comes within the scope of this work : but it may be
well to state briefly some elementary rules which govern the
two remedies in question.
Specific
perform-
ance.
Chap. III. § 3. BY BREACH. 30I
Damages.
When a contract is broken and action is brought upon it, —
the damages being unliquidated, that is to say unascertained in
the terms of the contract, — how are we to arrive at the amount
which the plaintiff, if successful, is entitled to recover ?
(i) 'The rule of the Common Law is, that where a party Per Parke. b..
^ '^ ' r ./ Robinson v
sustains a loss by reason of a breach of contract, he is, so far ."l^j.
as money can do it, to be placed in the same situation, with
respect to damages, as if the contract had been performed.'
Thus where no loss accrues from the breach of contract, Damages
the plaintiff is nevertheless entitled to a verdict, but for represent
nominal damages only, and * nominal damages, in fact, mean I^^"
a sum of money that may be spoken of, but that has no p« Mauie. j..
^ ^ •' •/ JT / Ij, Beaumont
existence in point of quantity.' And so in action for the J c T'iJi*"*'
non-payment of a debt, where there is no promise to pay
interest upon the debt, nothing more than the sum due can
be recovered; for the possible loss arising to the creditor
from being kept out of his money is not allowed to enter
into the consideration of the jury in assessing damages,
unless it was expressly stated at the time of the loan to be
within the contemplation of the parties. But by 3 & 4 "Will.
IV. c. 42. § 28 a jury may allow interest at the current rate
by way of damages, in all cases where a debt or sum certain
was payable by virtue of a written instrument, or if not so
payable was demanded in writing with notice that interest
would be claimed from the date of the demand.
(2) The rule laid down by Parke, B., in Rohinaon v, so far as it
Harman must be taken subject to considerable limitations templation
in practice. The breach of a contract may result in losses °^ ^^^
f , '' parties.
which neither party contemplated, or could contemplate at
the time that the contract was entered into, and the Courts
have striven to lay down rules by which the limit of damages
may be ascertained.
3o^
DISCHARaE OP CONTRACT.
Part V.
9 Exch. 354.
Exceptional
loss should
be matter
of special
terms.
Per Blackburn,
J., in Home v.
Midland Rail-
way Co.
L. R. 8 C. P.
So in Hadley v, Baxendale it was decided that 'where
two parties have made a contract which one of them has
hroken, the damages which the other party ought to receive
in respect of such breach of contract should be such as may
fairly and reasonably be considered either arising naturally,
i. e. according to the usual course of things, from such breach
of the contract itself, or such as may reasonably be supposed to
have been in contemplation of both parties, at the time they
made the contract, as the probable result of the breach of it.'
And where special loss is in contemplation of the parties
from the breach of the contract, such loss as would not,
in the ordinary course of things, follow upon the breach,
it is not enough that the loss should be in contemplation of
the parties in order that it may be recovered as damages,
there must be 'evidence of an actual contract to bear the
exceptional loss arising from breach of contract.'
In Home v, Midlcmd Railway Comjpany, the plaintiff being
under contract to deliver shoes in London at an unusually
high price by a particular day, delivered them to the defend-
ants to be carried, with notice of the contract only as to the
date of delivery. The shoes were delayed in carriage, were
consequently rejected by the intending purchasers, and the
plaintiff sought to recover, besides the ordinary loss for delay,
the difference between the price at which the shoes were
actually sold and that at which they would have been sold
if they had been punctually carried. It was held that these
damages were not recoverable, in the absence of any evidence
that the Company undertook the increased responsibility
arising from the unusual price.
Damages (3) Damages in an action for breach of contract are by
of contract ^^J of compensation and not of punishment. Hence a
dictive^" plaintiff can never recover more than such pecuniary loss
as he has sustained, subject to the above rules. To this
general rule, however, the breach of promise of marriage is
Chap. III. $ 3. BY BREACH, 303
an exception, for in such cases the feelings of the person Hamun v.
injured are taken into account, apart from such specific fg'^g^N^" '
pecuniary loss as can be shown to have arisen.
(4) The parties to a contract not unfrequently assess the Assessment
by parties.
damages at which they rate a breach of the contract by one
or both of them, aad introduce their assessment into the
terms of the contract. Under these circumstances arises the
distinction between penalty and liquidated damages, which
we have already dealt with in considering the construction see p. 243.
of contracts,
(5) It follows from the general rule laid down by Baron in Robinson
Parke, that a diflRculty in assessing damages can in no way dis- ' ^"^ ^ss
entitle a plaintiff from having an attempt made to assess them.
A manufacturer was in the habit of sending specimens of Difficulty of
his goods for exhibition to agricultural shows, and he made a must be met
profit by the practice. He entrusted some such goods to a ^^ J^^*
railway company, who promised the plaintiff, under circum-
stances which should have brought his object to their notice,
to deliver the goods at a certain town on a fixed day. The
goods were not delivered at the time fixed, and consequently
were late for a show at which they would have been exhibited.
It was held that though the ascertainment of damages was f ™pson y^
difficult and speculative, its difficulty was no reason for not f q! a^a^V
giving any damages at all.
And further, the plaintiff is entitled to recover for prospective
loss arising from a refusal by the defendant to perform a con-
tract by which the defendant would have profited. Thus where
a contract was made for the supply of coal by the defendants
to the plaintiff by monthly instalments, and breach occurred
and action was brought before the last instalment fell due,
it was held that the damages must be calculated to be the
difference between the contract price and the market price
at the date when each instalment should have been de-
livered, and that the loss arising from the non-delivery
304
DISCHARaE OF CONTRACT.
Part V.
Roper V.
on,
8C. P.
{ohnson,
- R.
167.
Jurisdiction
of Chan-
cery, as to
specific per-
formance.
How
limited.
Kekewtch r.
Manninsf,
z D. M. & G.
Z76.
Flight V.
Bolland,
4 Russ. aga
of the last instalment must be calculated upon that basis,
although the time for its delivery had not arrived.
Specific Performance,
The jurisdiction, once exclusively possessed by the Court
of Chancery, to compel performance of a promise, supple-
mented the remedy offered by the Common Law Courts, which
was often inadequate or inapplicable to the loss sustained.
A promise to do a thing can be enforced by a decree for
specific performance, a promise to forbear by an injunction.
The exercise of this jurisdiction by the Court of Chancery
was limited by several rules, some of which have been al-
ready noticed. Defects in the formation of a contract afforded
an answer to a claim for specific performance, and in some
cases Equity was more guarded than the Common Law in
granting its remedy to suitors. A gratuitous promise though
under seal cannot be enforced in Equity, nor can an infant
obtain specific performance of a contract which cannot be
enforced against him.
But the substantial limitations on the employment of the
remedy were these.
The Courts will not decree specific performance —
1. Where the Common Law remedy of damages is ade-
quate to the loss sustained.
2. Where the matter of the contract is such that the
Courts cannot supervise its execution.
Specific
perform-
ance only
where
damage an
inadequate
remedy.
(i) The first of these rules is illustrated by the different
attitude which the Court has assumed in this matter towards
contracts for the sale of land and contracts for the sale of goods.
The objects with which a man purchases a particular piece
of land are different to those with which he purchases goods.
He may be determined, in making the contract, by the merits
of the site or its neighbourhood, and these cannot be repre-
sented by a money compensation ; whereas goods of the kind
Chtp. III. § 3. BY BREACH. 305
and quality that he wants are generally to be purchased.
Hence specific performance of a contract for the sale of goods
is only decreed in the case of specific chattels the value of Leake on
, Contract, itaj,
which, either from their beauty, the interest attaching to them, J^^SS **'*'*
or some other cause, cannot be represented by damages.
(2) And the distinction drawn between land and goods ^^^^^Jj^®
illustrates the second rule also. can insure
An agreement for the purchase of land can be performed ance.
by the doing of a specific act, the execution of a deed or l^f^JSc^**'^
conveyance. In a contract for the sale and delivery of goods t^nkS^ISr?:©.
performance may extend over some time and involve the Raoway ca. '
■^ "^ L. R. 16 Eq.
fulfilment of various terms, and * The Court acts only where " p* *»■
it can perform the very thiog in the terms specifically agreed eS!^'.
upon.' 80.
But the second rule is more distinctly illustrated by the
refusal of the Courts to grant specific performance of con-
tracts involving personal services ; though it will enforce
by injunction a promise not to act in a particular way.
Thus in Lumley v, Wagner, the defendant agreed with the xd. m. & g
plaintiff to sing at his theatre upon certain terms, and during
a certain period to sing nowhere else. Subsequently she
entered into an engagement with another person to sing at
another theatre, and refused to perform her contract with the
plaintiff.
The Court declined to enforce so much of the contract as
related to the promise to sing at the plaintiff's theatre, but
it restrained the defendant by injunction from singing else-
where.
The remedy has been extended to breach of contract for
the sale of specific goods by the Mercantile Law Amend- 19 &»vicL
ment Act.
And specific performance may now be granted by any Effect of
one of the Divisions of the High Court of Justice; for J^gj^^^*"^^
the Judicature Act has removed the old distinctions oif^^^'^^^
X
Sttb-s.7. ,f
3o6 DISCHABGE OP CONTRACT. Part V,
jurisdiction between the Common Law and Chancery Courts.
But to the Chancery Division is still reserved a special juns-
s. 34. sub-s. s . diction in suits for * specific performance of contracts between
vendors and purchasers of real estate, including contracts
for leases/