Remedy for Breach of Contract

[DiggaB]

Hi All,

 

I'm a newbie on the forum and would like to ask the following question...Which is correct in law to remedy a breach of contract?

 

 

To put the claimant in the position they were in before the contract was formed

 

or

 

To put the claimant in the position they would have been in had the contract been performed

 

 

Many thanks for any replies

[Ricardino]

Hi Digga,

i think it all depends on whether you have accepted the breach or not. If the contract is still existing you could have two options.

Either rescind (to place the parties in their position pre contract) or affirm (accepting the contract as is but with liberty to seek damages).

Stocznia Gdynia v Gearbulk Holdings [2009] EWCA Civ 75 will offer you some further authority/information.

Please give more info if you can as your post is somewhat vague. Is it a business contract?

 

Ric

[DiggaB]

Hi Ric, many thanks for your quick reply.

 

No it isn't a business contract and as the goods have not yet been sent to us, technically it isn't even a contract. I just want to get it right in my head which term is correct as I have read both terms on the internet and just want to get my facts correct before I start to argue my case with the company in question.

[Ricardino]

Have to say I've heard of contracts where one party doesn't fulfil their part (or offers a substitute) and the merits of a claim are

quashed by a judge accepting the company made a reasonable attempt to complete.

Are the goods less than 5k (i.e. small claims procedure)??

[DiggaB]

Yes only a couple of hundred quid and the company has offered a small amount of compensation as well as my money back, my problem is that this compensation doesn't cover the cost of purchasing the item I should have received from elsewhere. Everyone has said I should accept the compensation as the company has offered to put me back into the position I was in prior to the contract taking place, hence my question...should I be put back to where I was or should I be put into the position I would have been had the contract been fulfilled?

[Ricardino]

Tricky one really.

 

Were the goods in question discounted hence your inability to be placed in the position had the contract been fulfilled?

 

Can you show any loss due to that fact?

[DiggaB]

Supposedly, I purchased the item at the end of their "sale" and the following day the item was over double the price! However the same item on other sites (although more expensive) is nowhere near the new price.

 

I spoke to a legal helpline today associated with our insurance company, who told me that the company should only put me back into my original position and when I queried with them if this was correct as I had read otherwise on the internet, I was asked if I was a legal expert or had any legal knowledge as they had!

[raydetinu]

IMHO you are entitled to some compensation at least for your time and having to source product elsewhere etc.

The amount would have to be reasonable but not necessarily the amount to cover the cost of purchasing elsewhere.

so it will be up to you to decide what you will accept or take it further.

[pin1onu]

My understanding of contract law is that a court can order:

 

1) Specific performance - where the party is forced to complete their part of the contract

2) The award of damages to put you in the position you would have been in had the breach not occurred

 

The usual position in torts is that their should be no enrichment from the damages. They've made an offer to refund and compensate, which you are at liberty to refuse. Specific performance is usually used in real estate but is a possible action. I would consult a lawyer and get their opinion.

[Ricardino]

Some relevant points in consumer law trading regulations;

 

Do you have a receipt of purchase?

Did they give you a date for delivery ? (written)

Did they give you written notice of their cancellation?

Is the item covered by the distance selling regulations?

 

Any of these could be breach of contract and that could be subject to compensation.

Of course, all goods are bought in good faith but if the item is still available for sale

they should honour the contract and if it were me IMO that would be worthy of action.

 

You should talk to your local trading standards as they will be able to offer you an honest

opinion and give you a better idea of where you stand with regard to consumer law.

 

Ric

[andydd]

I agree with most of the above but given that the value is not high and that they have already offered compensation is it really worth the effortr of legal action for perhaps a few pounds more ?

[Kraken1]

Which is correct in law to remedy a breach of contract?

 

 

To put the claimant in the position they were in before the contract was formed

 

or

 

To put the claimant in the position they would have been in had the contract been performed

 

Both, depending on the circumstances. I appreciate that doesn't help much. If you have contracted for a thing at a certain price (and provided that the contract is valid) then if the seller doesn't supply the thing you can get it elsewhere. If this costs you more then you can recover your losses, i.e. the difference in the sale price.