Breach of contract

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The basic principles of contract

A Jolly Contrarian tiptoe through the tulips of consensus™

Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent
Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation
Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee
Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent
Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability
Not contracts: Restitutionquasi-contractquasi-agency

Index: Click to expand:

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This article is about causation being the legal concept relating to contractual damages. For the statistical one see correlation — which doesn’t imply causation, true, but doesn’t rule it out either.
What happens when you don't do what you oughta.

Quelle domage

  • Just because one party breaches the contract, it doesn’t mean the other suffers a loss.
  • Just because one party suffers a loss, it doesn’t mean the other breached the contract.

For very sound reasons the law of contract imposes limitations (“causation”, “proximity” and “remoteness of damage”) on the damages a party may recover for breach of contract:

Indemnity for breach of contract

In theory, these pragmatic considerations of proximity, causation and remoteness do not apply where you have provided an indemnity for your breach of contract. This is why lawyers FREAK OUT about indemnities. By an indemnity you agree to pay a sum on demand in a certain event. The only question becomes whether you paid the amount when it was demanded. Note, in theory:

  • Causation: The question of whether the contract has been breached — usually the domain of the Queen’s Bench division — must be determined by the alleging indemnitor. Should that determination be wrong, do you have a counter-breach of contract? A restitutionary action for money had and received?
  • Remoteness of damage: Because your indemnity payment is for all losses howsoever caused, whether direct or indirect ... (ad nauseam) you are essentially contracting out of the rules of remoteness of damage, to your own detriment. You can hardly claim loss of profits weren't within the parties reasonable contemplation when you have explicitly contemplated it.

Consequential loss

See: consequential loss


Compare with an Indemnity where one party agrees to be responsible for a loss the other suffers even when the first doesn’t breach the contract.

See also