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Extra resources for Cavendish: Business Lawcards
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 of damages. 48 CAVENDISH L AWCARDS Non-pecuniary loss can be recovered (Jarvis v Swan Tours Ltd (1973)). Liquidated damages and penalties Quantum meruit This means that a party should be awarded ‘as much as they have earned’. If the parties enter into a contractual agreement without determining the reward that is to be provided for performance, then in the event of any dispute, the court will award a reasonable sum.
Has the exclusion clause been incorporated into the contract? An exclusion clause cannot be effective unless it is actually a term of a contract. There are three ways in which such a term may be inserted into a contractual agreement, as shown in the following diagram. 30 CAVENDISH L AWCARDS BUSINESS L AW 31 Does the exclusion clause effectively cover the breach? The contra proferentem rule requires any uncertainty or ambiguity in the exclusion clause to be interpreted against the meaning claimed for it by the person seeking to rely on it (Andrews v Singer (1934)).
If the person does not actually believe the truth of the opinion they express, then an action for misrepresentation will be possible (Edgington v Fitzmaurice (1884)). The statement must actually induce the contract: (a) the statement must have been made by one party to the contract to the other, and not by a third party; (b) the statement must have been addressed to the person claiming to have been misled; the person claiming to have been misled must have been aware of the statement; the person claiming to have been misled must have relied on the statement (Horsfall v Thomas (1962)).
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