Difference between revisions of "Contracts for Sale of Goods (11:III)"
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==== b) Damages for Breach of Condition ==== | ==== b) Damages for Breach of Condition ==== | ||
As mentioned above, the innocent party has a choice in the face of a breach of condition. He or she may (1) accept the repudiation, terminate the contract, and sue for damages right away, or (2), if he or she has a legitimate interest in doing so, may affirm the contract, wait for the date of performance, and sue for damages for | As mentioned above, the innocent party has a choice in the face of a breach of condition. He or she may (1) accept the repudiation, terminate the contract, and sue for damages right away, or (2), if he or she has a legitimate interest in doing so, may affirm the contract, wait for the date of performance, and sue for damages for any defect in performance at that date. (In many cases involving one-time sales, the performance date will be contemporaneous with the date of the payment/delivery/breach, rendering this a moot point.) | ||
In deciding whether or not to affirm a contract in order to assess damages at a later date, the client should consider the implications of his or her duty to mitigate the loss. In a sale of goods, purchasing the goods from someone else can often mitigate damages; generally no special interest exists in purchasing the particular goods from a particular vendor. | |||
==== c) Specific Performance ==== | |||
If an aggrieved party does decide to affirm the contract, specific performance may be available for a contract of sale for specific goods. Specific performance is a court order compelling performance of a contract in the specific form in which it was made (''SGA'', s 55). In certain circumstances, it may be available at common law for unascertained goods (''Sky Petroleum Ltd v VIP Petroleum Ltd'', [1974] 1 All ER 954). Specific performance is a discretionary equitable remedy and will only be granted if damages are inadequate; for example where the goods are unique or otherwise unavailable. Section 3(1)(c) of the ''Small Claims Act'' provides that the Small Claims Division of the Provincial Court of British Columbia can grant specific performance in an agreement relating to personal property. | |||
=== 4. Rescission === | |||
The remedy of rescission seeks to undo a contract. It is available for, among other things, misrepresentation. See section IV.I for a fuller discussion of what constitutes misrepresentation. Rescission is an equitable remedy that sets the contract aside and seeks to restore the parties to their original, pre-contractual positions. This usually means return of the goods and return of any payment made. Because it undoes the contract, no damages can be claimed beyond the restitution necessary to return the parties to their pre-contractual positions. Delay in bringing the action or acceptance of the goods may bar rescission. |