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transnational law transnational law (lex mercatoria or international business law) and "Calculation of damages" 2016-03-01 13:58:16 https://www.trans-lex.org/img/logo_ball.png
Principle

No. VII.3.2 - Calculation of damages

(a) Damages to which the party who suffers a loss from the failure of the other party to deliver is entitled are typically measured by the market value of the benefit of which the aggrieved party has been deprived through the breach, or the costs of reasonable measures to bring about the situation that would have existed had the contract been properly performed.


(b) The aggrieved party may calculate his loss

i)

based on the difference between the contract price and the price of a replacement transaction (e.g. substitute sale or substitute purchase) concluded within a reasonable time and in a reasonable manner or,

ii)

based on the difference between the price in the unexecuted contract and the market price current at the date of default and at the place where the contract should have been performed, or, if there is no current price at that place, the current price at such other place that appears reasonable to take as a reference.

Commentary
1 The Principle is based on the idea of damages as full compensation of the losses sustained by the aggrieved party and specifies the ways in which the aggrieved party may calculate the losses to be compensated by the damages.

2 Subsection (a) provides a general guideline for the calculation of the aggrieved party's direct loss resulting from the other party's breach. Such damage is typically measured by the difference between the value to the aggrieved party of the performance that should have been received and the value to that party of what, if anything, actually was received by it from the party in breach. The value is to be determined by reference to the market value of the benefit. Alternatively, the aggrieved party is entitled to recover the costs of measures it undertook to place it in the same position that it would have been in had the contract been properly performed by the party in breach, provided that such measures were reasonable.

3  Subsection (b) is modelled after Artt. 75, 76 CISG. It provides the aggrieved party with alternative ways of calculating its damage. The aggrieved party may calculate its direct loss with reference to a replacement transaction actually concluded by it, provided that this transaction is concluded, for the protection of the non-performing party, within a reasonable time and in a reasonable manner, or with reference to the market price at the date of default and at the place where the contract should have been performed, or, if there is no current price at that place, the current price at such other place that appears reasonable to take as a reference.



Please cite as: "Commentary to Trans-Lex Principle , "
References
Arbitral Awards
Court Decisions
Doctrine
International Legislation
Miscellaneous
Model Laws
Model Terms
National Legislation
Principles / Restatements
Contract Clauses
1. Equitable Remedies
Employment Contract
Equitable Remedies (Further Damages)
I agree that it would impossible or inadequate to measure and calculate the company's damages from any breach of the covenants set forth in Section X herein. Accordingly, I agree that if I breach any of such sections, the Company will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach of threatened breach and to specific performance of any such provision of this agreement. I further agree that no bond or other security shall be required in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.
2005
Sales & Purchase Contract
Remedies
Except as set forth in Sections X the rights and remedies expressly conferred upon a Party herein shall be cumulative and not exclusive of any other rights or remedies of a Party herein and (ii) the Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement (including failing to take such actions as are required of it hereunder to consummate any of the Transactions) is not performed in accordance with its specific terms or is otherwise breached, and agree that each Party shall be entitled to an injunction or injunctions to specifically enforce the terms hereof and to obtain injunctive relief or any other equitable remedy in the event of or to prevent any breach or threatened breach of this Agreement, including Sellers' obligation to consummate the Initial Repurchase and the disposition described in Section X on the terms and subject to the conditions of this Agreement, without the necessity of posting a bond or other undertaking in connection therewith, and each Party hereby waives the defense that an adequate remedy exists at Law for any breach or threatened breach by a Party of this Agreement with respect to which the non-breaching Parties are entitled hereunder to specific performance or other equitable remedies.
2012
2. Specific Performance
Sales & Purchase Contract
Specific Performance
The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.
2014
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