Thu, 10 Feb 2005 09:49:30
too am a Pothier man (and he took it from Molinaeus). It seems to
me to all rest on implied agreement, the old British Columbia
and Vancouverís Island Spar, Lumber, and Saw-Mill Co. v Nettleship
(1868), L.R. 3 C.P. 499 view with a few glosses. Despite a fashionable
skepticism about implying things (that I think is misguided as it
stems from failure to recognise that we can, in a real sense, intend
things that never crossed our minds), we have become quite sophisticated
at interpreting contracts, so why don't we use those skills to work
out what scope of responsibility has been impliedly accepted? For
me it depends upon lots of (shared) knowledge and assumptions about
how standardised the product/service was, the factors that are likely
to have gone into pricing (such as insurance), and a bunch of other
factors. They must be shared, so such factors will necessarily be
vague as most parties don't know much about other parties' business.
questions like 'must it be foreseeable as not unlikely or as a serious
possibility' are meaningless as all depends upon how the 'it' is
defined (a point almost made in the Jackson case), and
the real question depends upon what one would normally assume about
the scope of the duty undertaken. Anyway, I investigate and put
these views in a piece that is published now or very soon: 'An Agreement-Centred
Approach to Remoteness and Contract Damages' in N. Cohen and E.
McKendrick, Comparative Remedies for Breach of Contract
(Oxford: Hart, 2005). The piece is also at http://www.kramer.me.uk/adam/research.htm.
Sent: 09 February 2005 18:34
To: Robert Stevens
Subject: Re: ODG: Remoteness
guess I am partial to the Pothier view (as described by Robert)
since I see contract as an agreed upon transfer of one's entitlement
to another. Since it is a consensual two-sided exchange one has
to examine the terms of the agreement made between the parties.
What H v B seems to say is that one is entitled to the
thing promised and the ordinary use of the thing since knowledge
of these are shared between the parties and must form the basis
of the exchange. In my mind, therefore, the rule is not so much
a bargaining over damages but rather over shared use. If you have
a use that is subjective and not shared then it is not really
part of the exchange and therefore not compensable. In order to
make it part of the two-sided exchange, the information of the
special use must be communicated and accepted by the other side.
Thus, a collateral benefit is that the rule encourages disclosure
of the risk of harm but this is not its purpose -- rather its
purpose is to make concrete the two-sided exchange nature of contract.
the ordinary/special aspect and the timing aspect of the contract
remoteness rule are taken into account, I am not sure that there
is much difference between the reasonably foreseeable requirement
of tort and the reasonable contemplation requirement of contract
(despite the views of Lord Reid, who I do not really think understood
the reasonable part of reasonable foreseeability).
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