Introduction    to remedies

Damages is the basic remedy available for a breach of contract. It is a common law remedy that can be claimed as of right by the innocent party. The object of damages is usually to put the injured party into the same financial position he would have been in had the contract been properly performed. 

Sometimes damages are not an adequate remedy and this is where the equitable remedies (such as specific performance and    injunction) may be awarded. 

1.Damages （赔偿金）

(1)Nature

The major remedy available at common law for breach of contract is an award of damages. This is a monetary sum fixed by the court to compensate the injured party. In order to recover substantial damages the innocent party must show that he has suffered actual loss; if there is no actual loss he will only be entitled to nominal damages in recognition of the fact that he has a valid cause of action.

In making an award of damages, the court has two major considerations: 

Remoteness – for what consequences of the breach is the defendant legally responsible? 

The measure of damages – the principles upon which the loss or damage is evaluated or quantified in monetary terms. The second consideration is quite distinct from the first, and can be decided by the court only after the first has been determined. 

(2)Remoteness of loss 

The rule governing remoteness of loss in contract was established in Hadley v Baxendale. The court established the principle that where one party is in breach of contract, the other should receive damages which can fairly and reasonably be considered to arise naturally from the breach of contract itself (‘in the normal course of things’), or which may reasonably be assumed to have been within the contemplation of the parties at the time they made the contract as being the probable result of a breach. 

Thus, there are two types of loss for which damages may be recovered: 

 what arises naturally; and what the parties could foresee when the contract was made as the likely result of breach. 

As a consequence of the first limb of the rule in Hadley v Baxendale, the party in breach is deemed to expect the normal consequences of the breach, whether he actually expected them or not. Under the second limb of the rule, the party in breach can only be held liable for abnormal consequences where he has actual knowledge that the abnormal consequences might follow or where he reasonably ought to know that the abnormal consequences might follow – Victoria Laundry v Newman Industries. 

(3)The measure of damages 

In assessing the amount of damages payable, the courts use the following principles: 

The amount of damages is to compensate the claimant for his loss not to punish the defendant. 

Damages are compensatory – not restitutionary. 

The most usual basis of compensatory damages is to put the innocent party into the same financial position he would have been in had the contract been properly performed. This is sometimes called the ‘expectation loss’ basis. In Victoria Laundry v Newman Industries, for example, Victoria Laundry were claiming for the profits they would have made had the boiler been installed on the contractually agreed date. 

Sometimes a claimant may prefer to frame his claim in the alternative on the ‘reliance loss’ basis and thereby recover expenses incurred in anticipation of performance and wasted as a result of the breach – Anglia Television v Reed.

In a contract for the sale of goods, the statutory (Sale of Goods Act 1979) measure of damages is the difference between the market price at the date of the breach and the contract price,  so that only nominal damages will be awarded to a claimant buyer or claimant seller if the price at the date of breach was respectively less or more than the contract price. 

In fixing the amount of damages, the courts will usually deduct the tax (if any) which would have been payable by the claimant if the contract had not been broken. Thus if damages are awarded for loss of earnings, they will normally be by reference to net, not gross,  pay. Difficulty in assessing the amount of damages does not prevent the injured party from receiving them: Chaplin v Hicks. 

In general, damages are not awarded for non-pecuniary loss such as mental distress and loss of enjoyment. Exceptionally, however, damages are awarded for such losses where the contract’s purpose is to promote happiness or enjoyment, as is the situation with contracts for holidays – Jarvis v Swan Tours. The innocent  party must take reasonable steps to mitigate (minimise) his loss, for example,  by trying to find an alternative method of performance of the contract:  Brace v Calder.

(4)Liquidated    damages clauses(约定违约金条款)and penalty clauses（惩罚条款）

If a contract includes a provision that, on a  breach of contract, damages of a certain amount or calculable at a certain rate will be payable, the courts will normally accept the relevant figure as a measure of damages. Such clauses are called liquidated damages clauses. The courts will uphold a liquidated damages clause even if that means that the injured party receives less (or more as the case may be) than his actual loss arising on the breach. This is because the clause setting out the damages constitutes one of the agreed contractual terms – Cellulose Acetate Silk Co Ltd v Widnes Foundry Ltd. However, a court will    ignore a figure for damages put in a contract if it is classed as a penalty    clause – that is, a sum which is not a genuine pre-estimate of the expected loss on breach. 

 This could be the case where: 

The prescribed sum is extravagant in comparison    with the maximum loss that could follow from a breach. 

The contract provides for payment of a certain sum but a larger sum is stipulated to be payable on a breach. 

The same sum is fixed as being payable for several breaches which would be likely to cause varying amounts of damage. 

All of the above cases would be regarded as penalties, even though the clause might be described in the contract as a liquidated damages clause. The court will not enforce payment of a penalty, and if the contract is broken only the actual loss suffered may be recovered (Ford Motor Co (England) Ltd v Armstrong). 

（5）Miscellaneous Damages Rules.

Punitive damages are not available for breach of contract.

Winning party usually cannot recover attorneys'  fees unless the contract says so.

2. Equitable remedies（衡平法救济） 

(1)Specific performance （强制履行）

This is an order of the court requiring performance of a positive contractual obligation. Specific performance is not available in the following circumstances: Damages provide an adequate remedy. Where the order could cause undue hardship. Where the contract is of such a nature that constant supervision by the court would be required, eg, Ryan v Mutual Tontine Association. Where an order of specific performance would be possible against one party to the contract, but not the other. Where the party seeking the order has acted unfairly or unconscionably. He is barred by the maxim ‘He who comes to Equity must come with clean hands’. Where the order is not sought promptly the claimant will be barred by the maxims ‘Delay defeats the Equities’ and ‘Equity assists the vigilant but not the indolent’. In general the court will only grant specific performance where it would be just and equitable to do so.

(2)Injunction（禁令救济）

An injunction is an order of the court requiring a person to perform a negative obligation. Injunctions fall into two broad categories: Prohibitory injunction, which is an order that something must not be done. Mandatory injunction, which is an order that something must be done, for example to pull down a wall which has been erected in breach of contract. Like specific performance it is an equitable remedy and the court exercises its discretion according to the same principles as with specific performance, eg, Page One Records Ltd v Britton and Warner Brothers v Nelson.