Breach of a contract involves conducts, which are inconsistent with proper performance of the agreement. It is a violation of a material fact of the agreement. The material fact breached should go to the root of the contract. In Zombie, the main remedies available for a breach or threatened breach are; specific performance, cancellation, interdict and damages. The Zimmermann law unlike the English law allows or permits the plaintiff to choose his remedies provided he does not want to Just enrich himself. Further, the plaintiff should not endeavor to enforce two inconsistent remedies.
This is enforcement or calling of enforcement of the exact performance by the injured party to a contract. Our law does not allow a party in breach of a contract to rid their default by paying damages but, allows the injured party to demand specific performance, which however, is subject to the discretion of the court as was decided in Farmers’ Co-operative Society v Berry When there is breach going to the root of the contract the other party is entitled to cancel the contract.
The injured party must elect within reasonable time whether to cancel or enforce the contract. It is a prohibitory order of the court that prohibits a specified act or acts. It makes it mandatory for the concerned party to obtain from doing what has been mentioned in The approach the Zimmermann courts take towards the question of damages in breach of contract cases. By amahs not given an irreparable harm would be done. It should show some urgency as was decided in Estoppels v Estoppels.
Damages for breach of contract are meant to put the injured party to the position he would have occupied had the contract been properly performed in so far as that can e done by payment of money and without undue hardship to the other party. ‘ Damages for breach are not meant to compensate the other party for what he has lost but for what the party should have gained had the contract been properly performed. This paper will concentrate on damages to breach of contract and will give a critique of the approach taken by Zimmermann courts towards the question of damages in breach of contract.
These are monetary equivalents of specific performance. The fundamental rule in regard to award of damages for breach of contract is that the sufferer should be laced in the position he would have occupied had the contract been properly performed, so far as it can be satisfied by payment of money and without causing any hardships to the defaulting party as was decided in the case of Victoria Falls & Transvaal Power Co. Ltd v Consolidated Language Mines.
The General guidelines followed by the Zimmermann courts in assessing appropriate damages include among others the: Mitigation of losses by the injured party Causation and remoteness of damages Non award of damages for sentimental loss or injured feelings MITIGATION OF LOSSES In accordance with the principle that an award of damages must not cause undue hardship to the defaulting party, the plaintiff must mitigate his losses like what a reasonable man could do. The plaintiff is however, not expected to take unreasonable steps to mitigate his damages.
This was cited in the case of Bubbler v Woolens Limited 1926, where the court held that Bubbler was entitled to damages for full amount of his loss, because the position of builder’s foreman was of totally different and subordinate character to his previous employment. As a result he was not bilged to take the post in order to mitigate the losses. To avoid undue hardship to the defaulting party a line must be drawn separating damages resulting from his breach for which he should be liable and damages which, although in the broad sense of the word are as a result of his breach, are so remote to extent that he should not be liable for them.
This line is drawn when separating General (intrinsic) damages from Special (extrinsic) damages. The courts insist that the damages should be direct rather than indirect. Direct damages are also known as general or intrinsic damages. They flow naturally and generally from the kind of breach of contract in question. Indirect damages are special or extrinsic damages, which are only recovered in special circumstances attending the conclusion of the contract. In Zombie there is only one possible test that could be applied to decide whether special or extrinsic damages can be recovered for breach of contract.
This test is the contemplation principle. The test applied under this principle is to check whether the contracting parties actually or presumptively foresaw that the breach of contract in question would result in the type of loss being sued for. Case in point is that of Collective Self Finance Scheme (CUFF) v Shari (A) year 200 in which CUFF contracted to buy a property from the respondent and paid a deposit. CUFF later repudiated the contract and claimed return of the deposit. A, accepted cancellation and later sold the property to someone else for a lower price, and claimed damages for breach of contract.
Included in the amounts claimed were claims for extra bond finance, loss of investment income and loss of interest on the original sale until property was subsequently sold. The court held, that: I)What was being claimed was the normal contractual damage, I. E. That the respondent be put in the position in which he would have been had the contract been carried out ii)That the first two items were claims for special damages. It had to be alleged and established that these amounts were within the contemplation of the parties. No such allegations were made, nor did the evidence support such allegations.
The respondent was, however, entitled to claim interest on the agreed sale price. Another case beside that quoted in the question (Victoria Falls & Transvaal Power Co. V Consolidated Language Mines) that helps to illustrate the concepts of General and Special damages and the concept of foreseeable and unforeseeable damages is that of United Air Charters V Juryman year 1994 in which Juryman breached his contract of employment. He was employed by Air Charter Company for a two year contract, in terms of which the company paid for certain training costs.
He had undertaken to repay a pro rata portion of those costs if he left before the two – year period was Air Charter Co. Sought to recover special damages from him based on the fact that it loud be impossible for them to find a replacement within three months and that the Company would lose certain revenue as a result. The court held that even if the less rigorous contemplation principle was applied to decide the matter, the employee would not be liable as the parties had not foreseen or contemplated that the type of loss being claimed would result from the breach in question.
The lessons learnt from the above cases are that the courts do not have problems with the determination of general damages as these flow naturally from the breach n question. The valuation of general damages is on a pro rata basis I. E. Value of the whole contract agreement less value of what has been performed. The Zimmermann courts use the contemplation principle to determine whether there are any special damages in a breach of contract.
This was decided in an old case of Cookie v Meyer (1945) in which a Chinese Officer 0) on a British ship was first given a room for accommodation at Victoria West Hotel by (M) who on discovering that J was Chinese retrieved the keys from him and told him that the hotel was fully booked. J dude M for damages for injury of feelings that he suffered as the result of refusal of accommodation by M. The Judge of appeal dismissed the appeal by saying that damages cannot be awarded for injury of the plaintiffs feelings. It must be noted, however, that there are exceptions to this rule.
For example where pleasure is to be obtained from proper performance is an important ingredient in the contract as when a photographer undertakes to take burial photos or when a travel agent makes specific representations about facilities and entertainments available at a hotel. Case in point is that of Dieses v Samson (1971) in which Mrs.. D engaged S a professional photographer to take photographs of her wedding for 12 pounds and paid deposit of 2 pounds and she was given a receipt. When S breached his contract by failing to appear at the wedding or at the reception, Mrs.. D sued for damages for the resulting injury to her feelings.
Court held that since the contract was not for commercial purposes, and that it affected Mrs.. Ad’s personal, social and eased damages were 30 pounds. In short if there is breach of contract, and the contract is not a commercial one, if such breach affects plaintiffs personal, social and family interests the courts will use their discretion in awarding damages for mental suffering should the courts think that in those particular circumstance the parties to the contract had such damages in their contemplation.