영국 계약법상 손해배상에 관한 일고찰

Abstract

Under the England and Wales laws, several remedies are available for infringement of rights arising out of breach of contract. General principle is that a victim receives compensation for damage under the Common Law or the statute. However, if such remedy is in contradiction to natural justice, remedies in equity are available, such as ① injunction, ② specific performance, and ③ rescission. Compensation for damage for infringement of rights arising out of breach of contract under the England and Wales laws holds a key position. In order for a victim from breach of contract to claim for damage, the following requirements must be met:In other words, a plaintiff must prove that ① the contract exists, ② there is a breach of duty, ③ there must be a casual relationship between the breach of duty and the damage, and ④ the amount of damage incurred. Under the Common law which respects the agreement between parties, the doctrine of privity of contract applies. In the litigation of compensation for damage for breach of contract, a defendant argues that there is no contractual relationship under the doctrine of privity of contract. If there is a breach of contractual obligation under the Common Law, secondary obligation arising out of such breach may vary, depending on the nature and result of the breach. If a claim for damage arising out of infringement of rights in a civil case proves the ‘existence of contractual relationship’ and the ‘breach of duties under the contractual relationship’, there must be ‘casual relationship between the breach of duty and the damage’. Lastly, a plaintiff has the obligation to submit evidences presuming that damage has been occurred arising out of breach of duty (Burden of proof). A judge will recognize the reasonably presumed amount of damage incurred to the plaintiff arising out of the defendant’s breach of duty. Even if the plaintiff has successfully proved these factors, in the event that the defendant proves that ① the plaintiff has contributory negligence (Contributory Negligence), ② the defendant could not foresee the damage due to intervening cause (Unforeseeability & Intervening Cause), ③ the plaintiff was negligent in mitigating damage (Duty of Mitigation), and ④ there is a remoteness in casual relationship between the infringement of rights and the damage, the amount of damage will be reduced or negated.