Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview
Save to active project

13
Exceptional Measures of Damages: A Search for Principles

PETER CANE

My role at the SPTL seminar on exceptional measures of damages was that of Reporter. This intimidating job requires one to comment fairly and perceptively on the papers circulated in advance and to give a faithful account of the discussion on the day. On the face of it, the paper which follows performs neither of these tasks. The fact is, however, that in writing it I was greatly assisted and stimulated both by the papers prepared for the seminar and by the discussion which they generated. Yet a third task allotted to the Reporter is that of providing a framework within which the papers and the discussion can be brought into fruitful union. It is primarily this task which I have attempted to perform in this essay.

I will first tackle some terminological issues before examining in turn four different measures of damages recognized in the English law of obligations. Finally, I will have a few words to say about contractual penalties. My main argument will be that different measures of damages can be usefully viewed in terms of their aptness for expressing different degrees of disapproval of conduct and for sending out deterrent signals of differing strengths to those who might engage in such conduct.


TERMINOLOGY

The meaning of the term 'damages' is a matter of controversy. Some would say that an award of damages is a common law remedy, and that the proper name for monetary remedies in equity is 'compensation'. Others would say that the only proper measure of damages is compensation for losses, and that it is wrong to speak of 'restitutionary damages', for instance. (On this view, the word 'compensatory' in the phrase 'compensatory damages' is tautologous). Nevertheless, in this essay I will adopt a wide usage by referring to monetary remedies1 generally as 'damages' and by qualifying that word with adjectives which indicate the measure of the remedy (for example, compensation or restitution) and the source of the obligation for

____________________
1
Including account of profits.

-301-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
Wrongs and Remedies in the Twenty-First Century
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 333

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?