How to pin down the breacher!

“Honesty”, “Fair play” and “Confidence” are not just the words to be quoted but mean a lot while contracting. When you enter or make a contract, you agree on the mutual terms also you mutually place trust and confidence of yours in the other party and the same is expected from the opposite party. What if the opposite party has downplayed you? What if your contract was reduced to a mere piece of waste paper? What if the other party hasn’t turned up on the contract?

If that is the case then you can always catch and pin down the breacher. Here are the how you can do it :-

SUIT FOR DAMAGES

The word ‘damages’ means monetary compensation for the loss suffered. The aggrieved party may seek compensation from the party who breaches the contract.

When the aggrieved party claims damages as a consequence of breach, the court takes into account:

  • The provisions of law in this regard and
  • the circumstances attached to the contract.

The amount of damages would depend upon the type of loss caused to the aggrieved party by the breach. The court would first identify the losses caused and then assess their monetary value.

Your case and the circumstances will decide the amount of compensation which may fall into these 3 categories:

  1. General or ordinary damages – Damages arising naturally and directly out of the breach in the usual course of the things.
  2. Special damages – Compensation for the special losses caused to the aggrieved party by the special circumstances attached to the contract.
  3. Exemplary damages. – Damages for the mental or emotional suffering also caused by the breach.

TIP:  Plead in the manner in which you suffered the loss.

LIQUDATED DAMAGES AND PENALTY

The advantage of contracting is that you get all the agreed terms in writing + with a legal binding. One of such advantage is that you would have, in your contract, mentioned the section “In case of Breach”, the amount for realization. That very section will be come into play. If a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of breach is entitled, to receive from the party who has broken the contract a reasonable compensation not exceeding the amount so named. This will be a penalty for the breacher.

SUIT FOR SPECIFIC PERFORMANCE

You can make court to enforce the contractual obligations and liabilities of the breaching party because in certain cases of breach of a contract, damages may not be an adequate remedy.

Cases where specific performance may be ordered:

  1. Where there exists no standard for ascertaining the actual damage caused to the aggrieved party by the non-performance.
  2. Where monetary compensation will not be adequate relief.
  3. Where the act to be done is in the performance of trust.
  4. In general the court will only grant specific performance where it would be just and equitable to do so.

SUIT FOR INJUNCTION

An injunction is an order of the court requiring a person to perform a negative obligation. But for performance of the positive terms of the contract, the aggrieved party may seek other remedies.

You can move in the court and plead for grant of Injunction as a remedy of the breach.

SUIT FOR RESCISSION

If the opposite party hasn’t performed his/her part of the contract then you need not worry, you may also escape from it!

The breach of contract no doubt discharges the contract, but the aggrieved party may sometimes need to approach the court to grant him a formal rescission, i.e., cancellation, of the contract. This will enable the aggrieved party to be free from his own obligations under the contract.

PUNITIVE DAMAGES

Punitive damages are damages intended to reform or deter the defendant. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award the court may impose them to prevent under-compensation of plaintiffs, to allow redress of undetectable torts and taking some strain away from the criminal justice system.

And lastly,

 ‘Open your eyes and your ears when contracting, because the agreed upon circumstances means a lot’

And

Don’t get disheartened when caught in the trap of breach rather pin him down by your rights!

 

AUTHOR

Vrinda Chauhan

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