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Questions 1 Did the plaintiffs (who were claiming the price of the swimming pool) substantially perform the contract? If they did, how could they be liable up to the whole cost of the pool? If they did not, why should the defendants have to pay for the pool? 2 If the plaintiffs were in breach of contract, why did the defendant not receive damages to put him in the position he would have been in had the contract been performed? Are the House of Lords saying that the trial judge did in fact compensate his expectation interest? Why do you think a majority of the Court of Appeal came to a different conclusion on this point? Ought damage to attach to the res (swimming pool) rather than to the persona (Mr Forsyth’s mental well being) in contract cases? 3 Read The Liddesdale [1900] AC 190 in the law report. Has this case now been overruled by Ruxley? 4 Should the trial judge ever have been entitled in a contract case where the contract specified certain measurements to come to the conclusion that the swimming pool was reasonable? 5 Does Ruxley discriminate against the consumer? What if the defendant had been a commercial organisation or a local authority? 6 Read the French case of Cass civ 17.1.1984 to be found in Rudden, A Sourcebook on French Law, 3rd edn, 1991, OUP, p 501. Should Mr Forsyth have been entitled to the same kind of remedy? Why could he not have claimed specific performance? 7 Is there now a principle that contracts must be enforced in a reasonable way? 8 Is Ruxley a proportionality case? 9 PECL, Art 6:108 states: ‘If the contract does not specify the quality, a party must tender performance of at least average quality.’ Might it be said that the House of Lords was applying, indirectly (via the law of damages), the second limb of this article? But what about the first half: did not the swimming pool contract specify the quality? Does this mean that, in the common law, contractual rights are completely divorced from remedial rights? 10 Whose interests were being protected in this breach of contract case? (c) Tortious liability and damages
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This was an appeal against an award of damages made in respect of the destruction of the claimant’s factory and machinery by a fire negligently caused by the defendants. The claimant argued that they should have recovered the full cost (£65,000) of certain carpet-holding machinery destroyed in the fire, despite the fact that it cost them only £13,500 to buy. The defendants argued that they should not be liable for the full cost of the acquisition of new and better premises by the claimant. The Court of Appeal awarded the £65,000 for the carpet-holding machinery and dismissed the defendants’ appeal with respect to the new premises.