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The Operation of Mitigation under Japanese and English Commercial Law: A Comparative Analysis

Rogers, A. ORCID: 0000-0002-8376-3825 and Shimada, M. (2020). The Operation of Mitigation under Japanese and English Commercial Law: A Comparative Analysis. International Trade Law and Regulation, 26(2), pp. 112-125.

Abstract

A commercial contract is intended to lead to the mutual satisfaction of both parties to that contract. If there is dissatisfaction and such dissatisfaction is caused by a breach of the contract, then, except in rare cases, the dissatisfied will seek a remedy—either a commercially agreed one or a formal remedy in damages—as a monetary expression of loss, but the extent of damages has the potential to cause dispute; how much money is it appropriate for the court to award? In considering this, we should bear in mind that it is often the case that the breach will arise because the party, although having the capability to fulfil its obligation, notes that at the time of discharge there are changed economic circumstances which offer more lucrative returns, and it has been tempted into breach in order to obtain greater economic benefit. There is a very important debate among academics and jurists as to the way that such a default should be viewed. When considering the benefit and utility of breach in preference to performance, the “breaching” party needs to know the extent of likely damages; likewise, the “non-breaching” party needs to know its entitlement to redress. Quantifying the amount of damages has concentrated minds through the ages and in all countries, and the task is not an easy one. We propose to consider the issues related to limiting damages from the perspective of two of the legal regimes found in two commercially sophisticated countries: Japan and England & Wales.

Publication Type: Article
Additional Information: This is a pre-copyedited, author-produced version of an article accepted for publication in International Trade Law and Regulation following peer review. The definitive published version Rogers, A. and Shimada, M. (2020). The Operation of Mitigation under Japanese and English Commercial Law: A Comparative Analysis. International Trade Law and Regulation, 26(2) is available online on Westlaw UK or from Thomson Reuters DocDel service.
Publisher Keywords: Breach of contract; Commercial contracts; Comparative law; Damages; Japan; Mitigation; Non-pecuniary loss; Remoteness; Repudiation; Set-off
Subjects: H Social Sciences > HF Commerce
K Law
K Law > KD England and Wales
Departments: The City Law School > Academic Programmes
Date Deposited: 16 Apr 2020 19:03
URI: https://openaccess.city.ac.uk/id/eprint/24027
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