Читать книгу Canadian Business Contracts Handbook - Nishan Swais - Страница 47

Every breach of a contract entitles the injured party, at law, to compensation for the losses that party has suffered as a result of the breach. That compensation will take the form of an award of damages, which refers to an award of money.

To obtain an award of damages, the party suffering the loss must bring a lawsuit (also known as a legal claim or simply, suit) against the party in breach. The party does so by formally petitioning a court through the preparation of the necessary documents and by pleading his or her case to render judgment in his or her favour.

The court, through its award of damages, will then seek to put the injured party in the same position it would have been had the contract been performed (i.e., had the breach never occurred). In legal terms, that means that the court will award compensatory damages.

Note that it is generally not the goal of a court to penalize the breaching party or to provide a windfall for the injured party. This may come as a surprise to those who, through the media, have heard much made of punitive damages (sometimes also called exemplary damages). As the name suggests, punitive damages are intended to punish the person against whom they are awarded. However, punitive damages are rarely (if ever) awarded in instances of contractual breach in Canada. That is because, as a matter of public policy, most jurisdictions do not wish to play moral arbiter in contractual disputes. Punishment, when inflicted by the law, is generally reserved to regulate social and not commercial behaviour. Therefore, in the few instances where punitive damages are awarded in a contractual setting, it is usually done with a societal goal in mind (e.g., where fraud is involved). For a further discussion of punitive damages, refer to Chapter 7.

Punitive damages aside, compensation for breach is further limited by three more factors affecting damages awards: remoteness, mitigation, and contributory behaviour.