Civil Engineering Reference
In-Depth Information
specifically enforceable. While a decision on this point was not necessary to resolve
the case, Lord Megarry (as he then was) stated that he could not see why the contract
should not be held to be specifically enforceable. In contrast to rescission, whether
or not specific implement is an appropriate remedy in relation to a particular con-
tractual obligation will depend upon whether the party in breach is required to do,
allow or accept something. Such co-operation may be essential in relation to certain
obligations, but unnecessary in respect of others.
In the context of building contracts, the authors respectfully submit that where
co-operation by the party in breach is required, specific implement is not an appro-
priate remedy. Such an approach is consistent with the comments of Lord Reid, and
indeed the dissenting opinion of Lord Morton of Henryton, in
White & Carter (Coun-
cils) Ltd
. The innocent party must have an interest to insist upon specific implement
of the obligation. If the court is not satisfied that they have such an interest, their claim
will be for damages, see
Clea Shipping Corp
v.
Bulk Oil International Ltd
(1984). he
reality is that, in the majority of cases, the innocent party in a building contract may
have no legitimate interest in performing the contract, rather than claiming damages.
Insuchcases,ithasbeensuggestedthattheinnocentpartycan,inonesense,besaidto
be forced to claim damages. To insist upon any other remedy would be of little value,
see
Decro-Wall International SA
v.
Practitioners in Marketing Ltd
(1971) and
Ocean
Marine Navigation Ltd
v.
Koch Carbon Inc ('The Dynamic')
(2003). As stated by Lord
Justice Sachs in
Decro-Wall International SA
, 'in such cases it is the range of remedies
thatislimited,nottherighttoelect'.
In Scotland, the remedy of specific implement is available both in the Court of
Session and in the Sheriff Court. By virtue of section 47(2) of the Court of Session
Act 1988, interim orders for specific implement can competently be granted, see
Scottish Power Generation Ltd
v.
British Energy Generation (UK) Ltd
(2002),
Va Tech
Wabag UK Ltd
v.
Morgan Est (Scotland) Ltd
(2002) and
Purac Ltd
v.
Byzak Ltd
(2005).
These cases are considered in Section 15.2.3. No equivalent remedy is available in the
Sheriff Court.
10.4 Damages for breach of contract
10.4.1 General
Perhaps the most commonly used legal remedy is that of damages. Damages are
expressed in monetary terms. The purpose of damages for breach of contract is to
place the innocent party in the position they would otherwise have been in had the
breach not occurred. Damages may also be recoverable where no contract exists
but one party owes the other a duty of care and is in breach of that duty. In those
circumstances damages will be recoverable under the law of delict rather than for
breach of contract. Delictual claims are considered in Section 10.10.
The law of damages is a vast and complex subject and a detailed examination is
beyond the scope of this work.
It is open to the parties to a contract to decide in advance what damages, if any, will
be payable in the event of a breach by one, or any, of them. In essence, it is open to
