Addressing unusual subject matter, donor sperm used in assisted reproductive technologies (ART), the majority High Court decision in Clark v Macourt  HCA 56 confirms the manner in which damages are to be calculated for breach of contract.
The decision illustrates the importance of understanding the way in which the ruling principle can be applied in assessing damages, particularly in unique and factually complex cases.
It also suggests it is appropriate to advise clients to be proactive and mitigate loss if damaged goods are received in breach of contract – purchasing similar assets from alternative sources will not be viewed negatively by the courts. The maxim pacta sunt servanda illustrates the importance our legal system places on preserving the agreements struck by commercial parties. For a practitioner's client, this means that the law of damages will endeavour to place them in as good a position as if the promise had actually been performed.
Click 'Download' above to view the original article, which appeared in the Law Society Journal (NSW, Australia), March 2014 and is reproduced with permission.
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