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<p>8 Astride entered into a contract with Bild Ltd to construct a wall around the garden of a house she had just purchased.<br/>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<br/>and Astride entered into another contract with Chris to landscape the garden starting on 1 June.<br/>Bild Ltd finished the wall on 25 May. However when Astride came to examine it for the first time she found that it<br/>was only 2·50 metres high and that the rubbish tip was still visible from the top of her garden.<br/>On 1 June, Chris informed Astride that he was too busy to landscape her garden and that she would have to get<br/>someone else to do it. The only person available, however, will charge Astride £500 more than Chris had agreed for<br/>doing the work.<br/>Required:<br/>Analyse the scenario from the perspective of the law of contract, advising Astride:<br/>(a) Whether she can require Bild Ltd to reconstruct the garden wall in order to make it the agreed height, and<br/>if not, what alternative action is available to her. (5 marks)<br/>(b) Whether she can require Chris to undertake the work on the garden, and if not, what alternative action is<br/>available to her. (5 marks)<br/>(10 marks)</p><p>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<br/>the formation of contract, the problem clearly relates to breach of contract and the remedies available for such breach.<br/>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<br/>has refused to carry out his contractual agreement.<br/>Remedies for breach of contract<br/>By implication of the common law, any breach of contract gives rise to the requirement that the contract-breaker should pay<br/>monetary compensation to the other party for the loss sustained in consequence of the breach. Such monetary compensation for<br/>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<br/>two parts: remoteness and measure.<br/>Remoteness of damage involves a consideration of causation, and the remoteness of cause from effect, but is not a relevant issue<br/>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<br/>loss sustained by the injured party. Damages in contract are intended to compensate the injured party for any financial loss<br/>sustained as a consequence of another party’s breach. As the object is to compensate rather than to punish, the amount of<br/>damages awarded can never be greater than the actual loss suffered. The aim is to put the injured party in the same position they<br/>would have been in had the contract been properly performed.<br/>Particular difficulties arise in relation to estimating the damages liable in construction contracts. Where builders either have not<br/>carried out work required, or have carried it out inadequately, they will be in breach of contract and liable for damages. The usual<br/>measure of such damages is the cost of carrying out the work or repairing the faulty work. However, this may not be the case<br/>where the costs of remedying the defects are disproportionate to the difference in value between what was supplied and what was<br/>ordered. Thus in Ruxley Electronics and Construction Ltd v Forsyth (1995) the parties had entered into a contract for the<br/>construction of a swimming pool. Although the contract stated that the pool was to be 7ft 6in deep at one end, the actual depth<br/>of the pool was only 6ft 9in. The total contract price was £70,000. Fixing the error would have required a full reconstruction and<br/>would have cost around £20,000. The House of Lords considered that, as the costs of reinstatement would have been out of all<br/>proportion to the benefit gained, the difference in value only should be awarded.<br/>In certain circumstances, rather than merely award damages, the court can make an order for specific performance to require the<br/>party in breach to complete their part of the contract. However, an order for specific performance is not available in respect of<br/>contracts of employment or personal service (Ryan v Mutual Tontine Westminster Chambers Association (1893)).<br/>It remains to apply the foregoing general statements of law to the facts of the problem as follows:<br/>(a) An order of specific performance will only be granted in cases where the common law remedy of damages is inadequate and<br/>it will not be granted where the court cannot supervise its enforcement as in cases of contracts of employment or personal<br/>service (Ryan v Mutual Tontine Westminster Chambers Association (1893)). It is therefore clear that Astride will not be able<br/>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<br/>of those damages it appears that Astride’s case is different from Ruxley Electronics and Construction Ltd v Forsyth, and that,<br/>as a consequence, she will be awarded damages to the extent of the cost of raising the wall to the contractual height.<br/>(b) When as in this situation anticipatory breach takes place, the innocent party can sue for damages immediately on receipt of<br/>the notification of the other party’s intention to repudiate the contract, without waiting for the actual contractual date of<br/>performance as in Hochster v De La Tour (1853). Alternatively, they can wait until the actual time for performance before<br/>taking action. In the latter instance, they are entitled to make preparations for performance, and claim the agreed contract<br/>price (White and Carter (Councils) v McGregor (1961)). It would appear that Chris’s action is a clear instance of express<br/>anticipatory breach and that Astride has the right either to accept the repudiation immediately or affirm the contract and take<br/>action against him at the time for performance (Vitol SA v Norelf Ltd (1996)). In any event Chris is bound to complete his<br/>contractual promise or suffer the consequences of his breach of contract. Although Astride will not be able to get an order for<br/>specific performance against Chris, as the contract is one of personal service, she will be entitled to claim damages from Chris<br/>to the extent of the difference in his contractual price as against the price that Astride will have to pay someone else to get<br/>the work done: i.e. £500.</p> 多谢~~~ tks sss 谢谢 谢谢 看~页:
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