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Exemplary damages: Difference between revisions
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{{a|contract| | {{a|contract| | ||
{{image|Naughty|jpg|A candidate for [[exemplary damages]], yesterday.}}{{subtable|{{small|80}}{{loss v damages}}</div>}} | |||
}}{{d|Exemplary damages|/ɪgˈzɛmpləri ˈdæmɪʤɪz/|n|}} [''Only for civil wrongs not governed by a [[contract]]''] | |||
In which a court becomes unusually censorious, and departs from its usual role of merely ''compensating'' victims of civil wrongdoing, and proactively ''punishes'' a wrongdoer for its naughtiness, independently of any compensable loss it has caused, or ill-gotten gain it must disgorge. | |||
Not, generally, available as a remedy for [[breach of contract]], even in the US, though should one simultaneously commit a [[tort]] ''while performing'' a contract, one may still be liable for [[exemplary damages]] to the victim of the [[tort]]. | |||
For example say, in the service of your employer, you [[Fardell v Potts|navigate your punt]] so outrageously and to the detriment of a third party not being your employer or one of its customers, that the court feels you should be punished, look out. | |||
Not to be confused with [[aggravated damages]], which address unusual distress that he may have caused the victim, and therefore are still compensatory in nature, or [[consequential loss]], that speculative “oh-yeah-Jimmy-Hill” style damages for profits you ''might'' have made elsewhere had you not been busy being breached at under this contract. | |||
{{Punitive damages capsule}} | {{Punitive damages capsule}} | ||
===Exclusion of liability for=== | |||
You will see contracts excluding liability for [[consequential loss]] — fair enough, if a bit pedantic, seeing as typically one couldn’t claim it anyway — but also wrapping into that a carve out for liability for [[exemplary damages]], too. We query that: firstly, under a ''simple'' contract, there ''are'' no exemplary damages, as per above; secondly, even if there were — and there might be if the contract conferred some kind of fiduciary relationship, and therefore sounded in equity — we would ask ''what justification'' there would be for a party being exonerated from punishment from its egregious wrongdoing. You only are even vaguely in the frame for exemplary damages if your behaviour is ''so'' out of order, so contumelious in its high-handedness or outrage — that it would be unconscionable to let you get away with it unsanctioned. | |||
We wonder, too, whether a contractual term purporting to bar a non-contractual remedy would be enforceable in any case, especially where the person seeking to rely on it has, by definition, acted in bad faith. | |||
{{sa}} | {{sa}} | ||
*[[Consequential loss]] | *[[Consequential loss]] | ||
{{ref}} | {{ref}} | ||