8 Astride entered into a contract with Bild Ltd to construct a wall around the garden of a house she had just purchased.
The wall was to be three metres high to block out a view of a rubbish tip. The wall was due to be finished in May
and Astride entered into another contract with Chris to landscape the garden starting on 1 June.
Bild Ltd finished the wall on 25 May. However when Astride came to examine it for the first time she found that it
was only 2·50 metres high and that the rubbish tip was still visible from the top of her garden.
On 1 June, Chris informed Astride that he was too busy to landscape her garden and that she would have to get
someone else to do it. The only person available, however, will charge Astride £500 more than Chris had agreed for
doing the work.
Required:
Analyse the scenario from the perspective of the law of contract, advising Astride:
(a) Whether she can require Bild Ltd to reconstruct the garden wall in order to make it the agreed height, and
if not, what alternative action is available to her. (5 marks)
(b) Whether she can require Chris to undertake the work on the garden, and if not, what alternative action is
available to her. (5 marks)
(10 marks) 8 As the scenario states, Astride entered into contracts with Bild Ltd and Chris, so there is no need to deal with the issue relating to
the formation of contract, the problem clearly relates to breach of contract and the remedies available for such breach.
In relation to the first contract with Bild Ltd, the wall was not built to the agreed height and in relation to the second contract Chris
has refused to carry out his contractual agreement.
Remedies for breach of contract
By implication of the common law, any breach of contract gives rise to the requirement that the contract-breaker should pay
monetary compensation to the other party for the loss sustained in consequence of the breach. Such monetary compensation for
breach of contract is damages. The estimation of what damages are to be paid by a party in breach of contract can be divided into
two parts: remoteness and measure.
Remoteness of damage involves a consideration of causation, and the remoteness of cause from effect, but is not a relevant issue
in either of these instances. What is at the heart of the matter is the measure of damages, which relates to the actual amount of
loss sustained by the injured party. Damages in contract are intended to compensate the injured party for any financial loss
sustained as a consequence of another party’s breach. As the object is to compensate rather than to punish, the amount of
damages awarded can never be greater than the actual loss suffered. The aim is to put the injured party in the same position they
would have been in had the contract been properly performed.
Particular difficulties arise in relation to estimating the damages liable in construction contracts. Where builders either have not
carried out work required, or have carried it out inadequately, they will be in breach of contract and liable for damages. The usual
measure of such damages is the cost of carrying out the work or repairing the faulty work. However, this may not be the case
where the costs of remedying the defects are disproportionate to the difference in value between what was supplied and what was
ordered. Thus in Ruxley Electronics and Construction Ltd v Forsyth (1995) the parties had entered into a contract for the
construction of a swimming pool. Although the contract stated that the pool was to be 7ft 6in deep at one end, the actual depth
of the pool was only 6ft 9in. The total contract price was £70,000. Fixing the error would have required a full reconstruction and
would have cost around £20,000. The House of Lords considered that, as the costs of reinstatement would have been out of all
proportion to the benefit gained, the difference in value only should be awarded.
In certain circumstances, rather than merely award damages, the court can make an order for specific performance to require the
party in breach to complete their part of the contract. However, an order for specific performance is not available in respect of
contracts of employment or personal service (Ryan v Mutual Tontine Westminster Chambers Association (1893)).
It remains to apply the foregoing general statements of law to the facts of the problem as follows:
(a) An order of specific performance will only be granted in cases where the common law remedy of damages is inadequate and
it will not be granted where the court cannot supervise its enforcement as in cases of contracts of employment or personal
service (Ryan v Mutual Tontine Westminster Chambers Association (1893)). It is therefore clear that Astride will not be able
to force Bild Ltd to carry out the remedial work, and that her only remedy will be in relation to damages. As regards the extent
of those damages it appears that Astride’s case is different from Ruxley Electronics and Construction Ltd v Forsyth, and that,
as a consequence, she will be awarded damages to the extent of the cost of raising the wall to the contractual height.
(b) When as in this situation anticipatory breach takes place, the innocent party can sue for damages immediately on receipt of
the notification of the other party’s intention to repudiate the contract, without waiting for the actual contractual date of
performance as in Hochster v De La Tour (1853). Alternatively, they can wait until the actual time for performance before
taking action. In the latter instance, they are entitled to make preparations for performance, and claim the agreed contract
price (White and Carter (Councils) v McGregor (1961)). It would appear that Chris’s action is a clear instance of express
anticipatory breach and that Astride has the right either to accept the repudiation immediately or affirm the contract and take
action against him at the time for performance (Vitol SA v Norelf Ltd (1996)). In any event Chris is bound to complete his
contractual promise or suffer the consequences of his breach of contract. Although Astride will not be able to get an order for
specific performance against Chris, as the contract is one of personal service, she will be entitled to claim damages from Chris
to the extent of the difference in his contractual price as against the price that Astride will have to pay someone else to get
the work done: i.e. £500. | 
发表于 2008-10-11 13:20
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