Contract Law - Week 22A Lecture Mitigation, Contributory negligence, agreed remedies, specific performance and injunction Mitigation · Damages are designed to put C in as good a position as they would have been in if the contract had been carried out successfully · C is meant to take reasonable steps to put themselves in that position, if this is possible can only claim extra costs of doing so · C is under duty to do their best to minimise losses . Following a breach of contract, the innocent party should act reasonably in order to mitigate his loss. . C is entitled only to such damages that would have been suffered by a person acting reasonably after a breach of contract · If possible for innocent party to take steps to ensure no loss occurs, if reasonable for C to take those steps then it means C is only entitled to nominal damages . If taking reasonable steps would reduce the loss, then C would be entitled to damages that equate to the reduced loss · British Westinghouse Electric & Manufacturing v Underground Electric Railways Co of London (1912) . Per Viscount Haldane- this obligation to mitigate ... imposes on a plaintiff the duty of taking all 'reasonable steps' to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. . Essentially C is prevented from claiming losses that occurred because C didn't take steps to mitigate when it could and was reasonable to . 'Duty' is to be interpreted loosly - C doesn't commit any wrong by choosing not to mitigate . C is entitled to act in the way they think is their best interest . If doesn't mitigate then can only recover for costs if mitigated · Innocent party doesn't have to minimise losses, but shouldn't be able to recover losses as a result of own unreasonable behaviour . Payzu Ltd v Saunders (1919) · Contract to deliver goods over 9 month period · Payment one month of delivery in each instalment · Refused to deliver after had delivered first · Seller offered to continue delivery If buyer agreed to pay cash with each order · Buyer refused the offer · Claim failed · Buyer should have accepted offer as a reasonable buyer would have done so · Defendant's insistence on cash with each order (in breach of contract) should have been accepted. . It is important to remember that the burden of proof on the issue of mitigation is on the defendant. (see Borealis AB v Geogas Trading SA [2011]) · Mitigation and anticipatory breach (where a party states he will not perform his obligations under the contract) · White & Carter (Councils) Ltd v McGregor (1962) - · C had a contract to advertise D's business - dust bins - 3 days
· Insisted on going ahead and doing it and claiming full contract price even though D