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This paper explores from a Canadian perspective the awarding of damages for non-pecuniary losses that arise in commercial settings and asks the question whether there is any useful function performed by such awards. It is difficult to find cases that support such awards and thus if they are to be awarded, it will be advancing damages for non-pecuniary losses in a new direction. To justify such a movement, I suggest that the any development should be measured by two concepts: legitimacy - what is it that courts can legitimately do, and coherence - how does the award fit into a coherent and predictable legal system.I argue that from a purely compensation point of view, awarding compensation for a loss that is incommensurable does not make much sense. Only if the justification is vindication, deterrence or punishment is there merit in awarding more than compensation, but then, courts or legislatures should develop separate criteria to add quantification and to meet the standards of legitimacy and coherence.
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To understand common law contract doctrinal research methodology, one must first understand how contract doctrine came into existence and its enduring relevance. Historically, the common law was derived from judgments that focused upon proof of particularized facts and their fit to established writs. Contract doctrine emerged as a product of the Industrial Revolution's transformation of commercial and labor practices, the creation of new forms of property, and the new economic and social theories that shaped political discourse. In this chapter, the rise of common law contract doctrine is first described, and its enduring relevance to today's common law is articulated. This lays the foundation for an exploration into research methodology through three distinct examples: the incremental development by the Supreme Court of Canada of a doctrine of good faith performance in contract law; the interaction between legislature and courts in modifying contract doctrine concerning liability for innocent misrepresentations; and the place of party autonomy in correcting aberrant court decisions that are not in keeping with commercial realities. Through these examples, this chapter demonstrates how the common law navigates between the Scylla of certainty and the Charybdis of flexibility to keep common law contract doctrine relevant, but within what common law courts are constitutionally and legitimately able to do.
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Author / Editor
- Jeff Berryman (6)
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- Book Section (2)
- Journal Article (3)
- Preprint (1)