The general rule is that innocent parties are designated to such damage as will put them in the stand they would have been in if the contract had been executed, but there are three restrictions, which will be considered under the headline of remoteness, mitigation and causation. However, only measure of damages in light of remoteness will be discussed here. The classic test for remoteness was restated in the case of Nikseng Development Sdn Bhd v Public Bank Berhad & Another Appeal (2011) by Clement Skinner JCA when his lordship held that the court must first ascertain whether the damage or loss which the innocent party alleges he suffered naturally arose in the usual course of things from the withdrawal or which the parties knew when they made
was not sufficient’ Embedded also in the tort of passing off is the need to establish that the goodwill in one’s trade had been misrepresented as that of another trader. Misrepresentation it is said ‘need not be intentional for a passing off action to succeed, and innocence of misrepresentation is no defence.’ The misrepresentation of goodwill therefore could touch on ‘the origin of the goods, their quality, or even the way they are made.’ The misrepresentation ought to be actionable or material. It is of the essence that a consumer is deceived due to such a misrepresentation. The defendant in misrepresenting his goods or services as those of the claimant deceives the consumer. The end result is that the claimant is taken in by such misrepresentation
However, in the event of Thurston circumstances, it occurred that Peter would be liable for negligent misrepresentation unless he had reasonable grounds to believe and he did believed that the facts represented were true (Monaghan & Monaghan, 2013). The negligent misrepresentation will usually be limited to those reasonably foreseeable (Barnes, 2010). Fortunately, there are two possible ways for Thurston to claims for damages were negligent misstatement has been made for instance a claim in tort for a negligent misstatement or a claim for damages under s 2(1) Misrepresentation act 1967 (Poole, 2012). But it is suggested that Thurston has to pursue his claim under s 2(1) of the Misrepresentation Act 1967 where it is not necessary for Thurston to prove a special relationship between them that imposes a duty of care, and under this Act, Thurston will be successful since it reverses the normal burden of proof as in Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd  QB 574 (Riches & Allen, 2009). Therefore, where there is misrepresented the contract become voidable and as for Thurston situation the damages will be assessed in the same way as for fraud so that Thurston can recover for all losses flowing from the misrepresentation (Royscot Trust Ltd v Rogerson (1991)) (Riches & Allen,
See: • Smith v Hughes (1871) REMEDY Equity follows the law and will rescind a contract affected by unilateral mistake or refuse specific performance as in: • Webster v Cecil (1861) 30 Beav 62 (B) MISTAKE AS TO IDENTITY Here one party makes a contract with a second party, believing him to be a third party (ie, someone else). The law makes a distinction between contracts where the parties are inter absentes and where the parties are inter praesentes. Contract made inter
The first limb gives the right to the claimant in the situation that he is suffering loss which is caused by the breach of contract to the losses which are in the reasonable contemplation of the parties, as at the moment the contract is made. The losses are arising naturally from the breach of contract, in that damage is an inevitable consequence of the breach and this is also known as direct loss. The second limb allows the claimant for the recovery of the loss which is in contemplation by the parties as at the date of the contract. This is known as consequential loss . In Malaysia, the principle of remoteness of damages is stated in section 74(1) of the Contract Act 1950 : “When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of
However, even after a century confusion surrounding this doctrine still lingers on. Loss of chance damages reinforce the fundamental goal of contract law. They protect the reasonable expectations of the respective parties and the interests of those who have reasonably relied on the promises or behaviours of others . However, these cases involves not only the event between intermediate parties, claimant and defendant, but also the role of third party, thus making it quite complex for the courts to decide. Damages in a breach of contract can be either direct or consequential and the onus of proving a loss lies upon the claimant.
Civil Offenses Requiring Proof of Specific Intent Conversion Intent to exercise dominion and control over another’s property Trespass to Land Intentional interference with land of another State of mind becomes particularly relevant when the courts decide on the punitive damages to be awarded in torts cases. Where punitive damages are asked, the state of mind of defendant is the only issue. The purpose of the award of such damages is to punish the defendant for his willful, wanton or malicious conduct. 1.1 Intent For the purposes of deciding intentional torts cases, intent is essential and not purpose or motive. The position of the law is that a wrongful act done intentionally provides for an actionable claim, regardless of bad purpose or a motive to injure or cause harm .
When one party has not performed his promise in accordance with the terms of the contract, a breach of contract occurs. The very intention behind filing a lawsuit for a breach of contract is to seek the appropriate remedy for the grievances incurred through the breach of that contract . In Black’s law dictionary, it is defined that a remedy is “the means by which a right is enforced or the violation of a right is prevented, redressed, or compensated”. The word “remedy” in a legal context has somewhat the same meaning as in a medical context,ie, to cure. In a legal perspective, a remedy is something that cures the violation of a legal right.
I. INTRODUCTION In law of torts, there are many defences which the defendant can use against the plaintiff, when sued for specific torts. Negligence which is one of the most important tort has mainly three defences, namely, a) Contributory Negligence, b) Volenti fit non injuria, c) Ex turpi causa non oritur action. Of these three, I will be discussing Contributory Negligence as defence against the plaintiff. II.
Factors vitiating the contract to become voidable i) Coercion Under Section 15 Contracts Act 1950, when a person is persuasive by another to do some action like using the actual or endangered physical violence, psychological pressure, threats, economic duress or the bringing of unfounded criminal proceeding against him. The target of the coercion need not be the actual plaintiff but could involve the plaintiff’s family, near relatives or even his properties. All of that actions are force under criminal act or unlawfully detains or threatens to detain a guiltless party’s property. So, that plaintiff has an option to avoid the contract, plaintiff also has obligation to restore benefit such as the person withdrawing the contract must return the benefit he received under the contract to the person from whom the benefit was received, and the