Corporations Law Assessment Essay Example
1. Discuss the remedies available for a breach of contract?
There are many different types of remedies awarded for breach of contracts. These remedies are discussed as below;
At common law, breach of contracts is mostly remedied by awarding of damages. However, in some instances, the courts may propose specific performance of the entire contract to necessitate the breaching party to ensure to keep its side of the bargain (Australia Contract Law, 2014). It is mostly ordered whenever the aspect of monetary compensation is perceived to be inadequate. It is mostly awarded in the case of selling land or even distinctively unique goods. On the contrast, courts limit the manner for which it can be applied given that it is sometimes costly to implement given that it requires intensive levels of supervision by the warding courts (Australia Contract Law, 2014). In essence, the process of ensuring that parties engage in executing the overall contractual commitment is indeed significant to impose on individual liberty in addition to be economically inefficient.
Courts propose rescission as a mode of remedy to breach of contract since it is an equitable form of remedy within a given civil lawsuit. It is proposed especially because it fosters to bringing all parties close to the same position they were placed prior to having entered into a contract (Australia Contract Law, 2014). In fact, the remedy requires that all parties involved give back any form of benefits that they enjoyed while the contract was in force and be reset to its initial position in a way that portrays whether a contract was executed in the first place (Australia Contract Law, 2014). The popular reasons for proposing rescission might include; mutual consent between parties involved, challenges that are associated with the entire contract formation like mistakes, fraud and duress or even undue influence.
This is a form of remedy that assumes an equitable position and thus, involves the restoration of a given breached contract back to initial position both in financial and action terms. It is computed in relation to the benefits of a defendant as opposed to the plaintiff’s losses. It especially necessitates a defendant to overlook possible gains that they might have unlawfully accessed to the plaintiff (Australia Contract Law, 2014). It is awarded in order to ensure that the victim is wholly restored to the immediate financial prowess prior to when the offence happened and also, in order to prevent possible unjustified enrichment of a defendant. It is however limited to cases where the overall amount cannot be computed correctly (Australia Contract Law, 2014).
Damages are the most popular way of remedying any form of breach of contract that might have occurred. There are two most common ways used to apply damages and they include;
Compensatory damages ensure to cover for the loss of a given non-breaching party that was incurred due to the breach of contract. Compensatory damages can be in form of general or special in nature (Australia Contract Law, 2014).
General damages; ensures to cover the level of loss involved directly and, for that reason incurred by the breach of contract (Australia Contract Law, 2014).
Special damages: ensure to cover for the loss that has been incurred by any given breach of contract as a result of special situations that could not be ordinarily predictable (Australia Contract Law, 2014). The losses are necessarily caused by a breach of contract but not incurred in a straightforward and immediate manner.
These are remedies awarded in order to punish or even make example of the wrongdoer that has been established to having acted on intentional or even fraudulent manner. They are mostly resorted in tort cases as a way of punishing intentional or even a form of reckless misconduct that leads to possible individual loss (Australia Contract Law, 2014). Unlike compensatory damages that are meant to cover for possible actual loss, punitive damages are purposed to specifically punish the wrongdoer for any unnecessary behavior and as a result, deter others from acting in the similar manner in a near future (Australia Contract Law, 2014).
Discuss the ways in which a contract may be discharged.
Discharge By Performance
This is, by far, the most commonly used way of discharging a contract and it can be through actual or even attempted performance
Actual performance occurs whenever each of the parties involved in a contract are perceived as having fulfilled their immediate obligations under the contract in place within the period and manner that was set in the first place (Australia Contract Law, 2014). However, in the case where only party of the contract manages to conduct their end of the bargain, they are solely discharged from it. In consequent, such a party enjoys a right of action against the other party that is deemed to be guilty of the entire breach (Australia Contract Law, 2014).
Attempted performance occurs when one party sets to execute their obligations established within the contract but is incapable since the other party does not really accept the performance (Australia Contract Law, 2014).
Discharge by Mutual Consent or Agreement
This is especially so because a given contract is deemed to be a form of agreement. Through novation, a new contract is perceived to be substituted for an underlying contract either by same involved parties or even through mutual consideration of an old contract (Australia Contract Law, 2014).
Discharge through Termination For Breach
It occurs whenever a single party commits serious level of breach prompting the other party to terminate it wholly (Australia Contract Law, 2014). However, legal actions should be adhered while doing so as it might prompt recovery through damages.
Discharge through Termination out of Frustration
A given contract is deemed to be construed under frustration in the case one of the involved parties is incapable to conduct their end of the agreement as a result of unforeseen interventions. It is a challenge to portray (Australia Contract Law, 2014).
Australia Contract Law 2014. Remedies: Damages and Liquidated Claims. Retrieved on January 17, 2016 from http://www.australiancontractlaw.com/law/remedies.html
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