Adam states: "if the claimant reasonably waits two weeks or two years following breach and then goes to the market or should have done, the replacement cost is assessed at that date, even if the loss is then lower than the value at the date of breach" - What is the authority for this proposition?  My understanding was that where goods are not delivered, the buyer is entitled to damages assessed by reference to the difference in value between the contract price and market price at that time, and that it did not matter that the consequential losses suffered as a result of the breach were in fact lower than this figure: Rodacanachi v Milburn (1886) 18 QBD 67, CA; William Bros v Agius [1914] AC 510, HL. Where the consequential loss is (unusually) higher than this figure, that is recoverable, save where this loss is caused by the plaintiff's own failure to mitigate. Rob ________________________________________ From: Adam Kramer [adam@kramer.me.uk] Sent: 19 October 2012 08:54 To: Robert Stevens; obligations@uwo.ca Cc: 'Stephen Smith, Prof.' Subject: RE: Supreme Court of Canada on Specific Performance and Mitigation I think Rob agrees with me (contra Steve, I think) that the duty to mitigate applies to the decision whether to terminate providing there has been an actual breach (albeit repudiation has not yet been accepted so as to terminate). The question is then one of the facts: has the defendant breached. Whenever a completion date has been fixed in a sale there will be a breach by non-delivery of possession or keys or whatever on that date. In Southcott the closing date was fixed and then extended to 31.1.05 but the claimant refused to extend further. So clearly there was a breach on 31.1.05, and this was also a repudiation. Damages started to flow from the breach (the failure to pursue the development) and the claimant could have mitigated by terminating and going elsewhere (although clearly it would be too risky to go elsewhere without terminating as it might end up with two properties), and it was found unreasonable not to (given that the spec perf claim was weak and there were other properties just as good). I'm not sure when trial was but the first appeal was 2010 and the SC case 2012. So the claimant should have mitigated during that period but did not, and that has implications for the measure of damages (but not, as we all agree, the action for a price which is entirely different and to which this argument does not apply). The SC was right. As for Rob's answer to Steve, the question the courts and Sale of Goods Act asks is whether and when the claimant should have gone to the market for a replacement. This date can vary according to the market, whether the claimant reasonably pressed the defendant for performance for a while, etc. Rob's answer simply does not allow for these features. (E.g. if the claimant reasonably waits two weeks or two years following breach and then goes to the market or should have done, the replacement cost is assessed at that date, even if the loss is then lower than the value at the date of breach; indeed the court does not care about the value or cost at the date of breach and it is not discussed; and this is not some hidden replacement of substitutionary damages by lower consequential losses which in any case Rob says cannot happen.) Adam Kramer 3 Verulam Buildings Gray’s Inn, London, WC1R 5NT Direct dial: Switchboard: +44 (0) 20 7269 1101 +44 (0) 20 7831 8441 Fax Number: +44 (0) 20 7831 8479 -----Original Message----- From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk] Sent: 18 October 2012 17:38 To: Adam Kramer; obligations@uwo.ca Cc: 'David Campbell'; 'Stephen Smith, Prof.' Subject: RE: Supreme Court of Canada on Specific Performance and Mitigation It all depends when the breach occurs. So, Adam states "The choice whether to affirm or terminate occurs after (upon) the breach and the duty to mitigate has arisen." I don't think it does because without the acceptance of the repudiation there is no breach at all. It is writ in water. That is why a repudiation can be withdrawn. If it were itself a breach without more it could not be. As to the cases Asamera v Sea Oil did not concern a repudiation, but an actual breach Habton v Nimmo concerned a breach of warranty of authority, not repudiation. And so there was a duty to mitigate from the moment of the wrong. Dunno about the Saskatchewan one Steve asks "If you fail to deliver goods to me and, without having in any way indicated that I am no longer expecting you to perform, I later sue you, I will not be given specific performance (unless the goods are unique) and my damages will be calculated assessed on the basis of the market price as of the contractual date of delivery. Yet if I did not terminate, then according to the orthodox understanding of the relationship between termination and mitigation (as set out by Rob and Andrew), should not damages be calculated as of the date of judgment?" The plaintiff is entitled to damages reflecting his right to performance, assessed at the time of breach (here time of non-delivery). Consequential loss is irrelevant to this head of damages. If he wishes to argue that he has loss consequent upon the breach of the duty to deliver on a particular day over and above the difference in value this is recoverable (although usually difficult to show where there is a ready market for the goods that he can avail himself of, ie he either can or should mitigate). Consequential losses are assessed at time of trial. Termination does not come into it. I tried to explain the law on timing of damages in sale cases (amongst other things) in a book chapter edited by one J Neyers. Available to be read here I see http://denning.law.ox.ac.uk/news/events_files/A_Golden_Victory_or_Not.pdf=