Exemplary Damages

Commercial Remedies: Resolving Controversies, Forthcoming

Oxford Legal Studies Research Paper No. 65/2017

Posted: 18 Apr 2016

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: 2016

Abstract

The purpose of this chapter is to address five disagreements regarding exemplary damages and to suggest how they should be resolved. These disagreements are as follows. First, should exemplary damages be available as a remedy for breach of contract? Secondly, should the ‘categories test’ developed in Rookes v Barnard be retained? Thirdly, does the apportionment provision for contributory negligence apply to awards of exemplary damages, and should it apply to such awards? Fourthly, should a defendant ever incur vicarious liability in respect of exemplary damages? Fifthly, are exemplary damages masquerading as another form of damages? The analysis that follows seeks to shine new light on these areas of persistent difficulty. Despite the scale of the literature that exists in relation to exemplary damages, theorising in relation to all five of these debates has (it will be argued) gone awry.

Keywords: damages; punitive damages; exemplary damages; breach of contract; apportionment of damages; contributory negligence; vicarious liability

JEL Classification: K12, K13

Suggested Citation

Goudkamp, James, Exemplary Damages (2016). Commercial Remedies: Resolving Controversies, Forthcoming; Oxford Legal Studies Research Paper No. 65/2017. Available at SSRN: https://ssrn.com/abstract=2765697

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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