Essay Example on Change of Common Law Approach to Mitigation

Published: 2022-12-26
Essay Example on Change of Common Law Approach to Mitigation
Type of paper:  Essay
Categories:  Law Business law
Pages: 5
Wordcount: 1240 words
11 min read

An executory contract is a type of contract which has not been fully executed by the parties. In this kind of contract both the parties involved have not executed part of their performance. For that matter, an obligation to make payment does not make the contract executory. Even the responsibility to make payment to the other party does not make the contract executory. According to Atiyah's statement "The reality is that the bindingness of executory contracts protects not the expectation of performance but the expectation of profit, and even that is only protected so long as the promisee cannot secure it elsewhere." This statement can be changed to ensure that the executory contracts protect the expectation of performance but not profit. It is easy to change common law approach to mitigation by introducing remedies to the breach of contracts such as damages, specific performance, an injunction which ensure the injured party in contract gen compensated for the losses incurred. When entering into a contract, it is essential to mitigate the injury which is likely to occur.

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The change in introduced in common law by ensuring that there is a legal obligation for parties entering into a contract to minimize the effect or losses that originates from the injury when there is a breach of contract. The creation of such duties in the law of contract is essential is ensuring that every party to a contract take a reasonable step to prevent the increase in the effect of the breach of contract (Rosen, 2017). The purpose of the obligation to mitigate inhibits the recovery of part of the damages that could have been avoided when the injured party takes reasonable care. Also, the common law should be changed in a manner that an innocent person in a contract also must consider any unusual step or sacrifice substantial right to avoid the losses from the breach of contract as opposed to common law. The innocent person must also be required by the law to take some step to avoid the loss as this can reduce the number of damages. It is not right for an injured party to a contract to receive compensation for injuries that he or she was in a position to avoid because it flows from the omission of the defendant which he or she could have avoided by taking a reasonable course of action (Le-Pautremat, 2006). At the same time, it is essential to modify common law in a manner that the claimant can only recover losses suffered when in the process of mitigating the damage. As a result, it is crucial to incorporate duty to mitigate in French law to ensure that both the claimant take reasonable care to minimize the law. This helps in reducing the loss the injured party could have suffered and also ensure that that the wrongdoer becomes liable for the loss as reduced. The introduction of mitigation of damages by the innocent party ensure that the wrongdoer party pays a commensurately amount for the loss the injured party has suffered thus avoid overcompensation.

It is also necessary to introduce the remedy of specific performance in French law as the primary remedy in law of contract as opposed to common law which considers it a secondary remedy after damages. This will change common law because it will not allow the innocent or the claimant to receive any gain in terms of profit. The incorporation of this remedy into the French code will ensure there is enforcement of contractual rights as opposed to payment of damages (Dyson, 2009). In the law of contract, there is a right to performance, and therefore the number of damages and injunction are regarded as substitutional remedies in the law of contract. In common law specific performance is taken as a secondary right and to ensure there is change, it is necessary to use it as the primary remedy for the law of contract. This is because the breach of contract is usually describing non-performance of one of the parties of the agreement and therefore ensuring that there is the performance of the defendants completes the contract. It is, therefore, can be used as the best remedy which compels the defendants to meet the terms of the agreement. For that matter, the use of specific performance as the primary remedy in the law of contract ensure that each party understands that he or she must perform and a correlative right to performance on the part of the claimant. Specific performance, therefore, is used to strengthen damages which are considered to have several inadequacies when used as a remedy in law of contract.

Finally, Common law can also be changed by introducing the concept of expectation damages to protect the interest of the claimant to get the value of the promise of the other party in a contract. This principle is not there in common law, and its application is a significant change that creates fairness and ensures every party to a deal does not receive unnecessary gain from the breach of contract. The expectation damages will put the claimant in the right position he or she would have been when each party to the contract have met their contractual obligation (Benson, 2001). In most cases, the use of expectation damages is used in the contrast of reliance damages which is commonly applied as a remedy to address the interests of other parties in enforceable promises. The only challenge of incorporating this principle of law in common law is that it is it's associated with monetary damages which as several limitations when used to compensate the injured party in a contract. When fining the value of expectation damages, it is essential to find the difference between the number of damages which has been paid and the amount of the promise and other expenses less any reimbursement which has been made to the defendant and additional costs which have not been incurred.

The implementation of these changes in common law will ensure that no party benefits from the contract because each party will meet his or her contractual obligation. Furthermore, the use of specific performance as the primary remedy in the law of contract as opposed to common law ensure that each party receives contractual right as required by the law. Also, changing common law also involves the introduction of mitigation loss to the claimant as it has only been to defendants. This will give the claimant a duty to ensure they take reasonable care to minimize the loss that he or she would have suffered from when there is a breach of contract. Finally, it's essential to practice expectation damages which are also meant to put the claimant to his original position he or she would have been when all the terms and condition of the contract have been met.


Rosen, D. (2017). Breach of contract - the innocent party's duty to mitigate loss. Law reforms, 1(2017), 1-4. Retrieved from's-duty-to-mitigate-loss

Le Pautremat, S. (2006). Mitigation of Damage: A French Perspective. International and Comparative Law Quarterly, 55(01), 205-218. file:///C:/Users/Hp/Downloads/Mitigation_of_Damage__A_French_Perspective%20(1)%20(1).pdf

Benson, P. (2001). The Expectation and Reliance Interests in Contract Theory: A Reply to Fullerand Perdue. Issues in Legal Scholarship, 1(1). doi:10.2202/1539-8323.1004

Dyson, A. (2009). Relationship between contributory negligence and mitigation. Two Sister Doctrines in Search of Reunion', electronic copy, 1(2009), 1-29. Retrieved from file:///C:/Users/Hp/Downloads/The_Relationship_Between_Contributory_Ne%20(3).pdf.

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