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argumentative essay on terrorism pdf
Lord Hobhouse, in his eloquent dissent, stressed that Attorney General v Blake was thus decided in bad faith. It was a final desperate attempt of the Government and agency to right a wrong, which they had neglected to act upon using the ordinary recourse of criminal prosecution. This decision haphazardly extends the remedy of restitution into an area where it does not have an adequate foundation, since contracts do not in the first place confer an exclusive or proprietary right on the parties that enter into them. Ordering a disgorgement or account of profits in an instance of a pure contractual relationship actually creates new wealth for the claimant, where none existed before. Had the defendant usurped any property rights of the claimant’s, the claim would have been more suitable under the law of torts, not contracts. But without the requisite harm or loss incurred, restitution seems more punitive than compensatory when awarded for a breach of contract. It punishes those who, by using seemingly underhanded methods, have gained a profit in the course of business, even where no loss has been caused and no explicit laws have been broken. Not only does this run counter to the essence of contractual dealings, it undermines the basic tenet of freedom of contracts. Namely, one is generally free to decline or undercut performance in search of a “better deal”, provided that she then becomes liable to compensate the other party for any loss incurred. By abandoning the general compensatory nature of damages and introducing restitution as a remedy, the courts risk creating greater uncertainty and thus discouraging commercial activity. This dangerous expansion of the remedy should be seen as a bad precedent as such, for it violates the fundamental assumptions of contracts without necessarily achieving the aim of equitable redistribution of wealth.
It is however acknowledged that in certain circumstances, damages alone are not adequate in compensating the innocent party for a breach of contract. Examples include situations where pecuniary damages are incapable of putting the breachee in the same position as if the contract had been performed or where only performance is capable of satisfying the terms of the contract, and consideration provided therewith. In these circumstances, recourse to remedies in equity is preferable. The classic case of Beswick v Beswick illustrates this point. In this case, the defendant was required, inter alia, to pay an annuity to the deceased’s wife in exchange for the sale of a coal business at a considerable discount. The defendant however defaulted on his promise once Mr. Beswick died, thus breaching the contract. The court ordered specific performance for Mrs Beswick, as nominal damages would have been inadequate to satisfy the bargain which the defendant had gained in making his promise to the testator. Although this case was concerned primarily with ‘privity of contracts’, one of its upshots was to delimit certain circumstances under which remedies in equity were preferred for a breach. Remedies such as specific performance or injunctions may thus be granted in cases where money does not adequately capture the essence of performance.
Atiyah essays on consideration, College paper Academic Service
Atiyah, The Rise and Fall of Freedom of Contract, H.G. Beale, W.D. Bishop, M.P. Furmston (eds), Contract: Cases and Materials, 5th Edition, OUP, (1979) pp 402.
In conclusion, a question of recognising restitutionary damages within contract law invariably converges on a question of sanctioning punitive measures in this field. In the context of restitution for wrongs, the injustice does not lie in causing harm or loss to the claimant, for the remedy is available without proof that the wrong has made him worse off. It lies in the defendant being enriched by unjust means, and at the expense of the claimant. I argue that it is not necessary to punish the defendant for such actions beyond nominal damages. In the event of loss, the ordinary remedies of compensatory damages or equitable remedies suffice to deal with the impact of breach. This is so, because contract law is fundamentally a law of markets, governed by mutual self-interests. Restitution hinders the workings of this market by penalising parties that have managed to get a “better deal” than that which was bargained for, and it introduces uncertainties into the field of contract law. I stand behind Lord Hobhouse’s dissenting opinion as such, when he states that contractual obligations are correctly understood as being the obligation to perform or pay damages for failing to do so. This ought to be the full scope of liability in contracts. Further punitive measures such as restitution should therefore be avoided.
Essays on contract by p atiyah / Critical annotation
English courts seem to have adopted a similar view to Canada and the United States, prior to the case of Attorney General v Blake, and often forged some relationship (fictional or otherwise) of trust between the claimant and defendant, in order to justify an award of restitution within the domain of contracts. Attorney General v Blake is the first instance where the courts stretched restitutionary damages for a pure contractual breach, as it was considered exceptional. This case concerned an MI6 secret service agent who signed an Official Secrets Act contract, as part of the terms of his employment. Under this contract, he was sworn to secrecy and enjoined not to reveal confidential information about his work with the agency. Blake purportedly breached these terms when he published a book about his disloyal activities towards the service, thus committing the very act which he contracted not to do. The award of restitution against Blake and his publishers came after a period of time had lapsed, and the agency and government did not take adequate steps to prevent the publication of the book, although they were aware of it.
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