Essentially, the point at issue was the proper measure of damage where a party in breach of contract fails to provide promised goods and services for which the promisee has been willing to pay. Should the damages be more than purely nominal if it can be shown that the promisee, for whatever reason, has himself suffered no direct or consequential damage or incurred any liability as a result of the breach? If correct, the argument means that in all such situations the promisee’s defeated contract expectation, or “performance interest” as it is now being described, is in law of no practical value and the promisee can recover nothing for its loss. It also means that the promisor defaulting party can in such situations renege on his own obligations, up to and including repudiation of the contract, with impunity. In a strictly construction context the argument becomes available where work contracted for with the promisee is carried out on land and for the benefit of a third person in situations where the promisee has not contracted as the third person’s agent and where the responsibility for reinstating omitted or defective work will be that of a third person who has no recourse against the promisee. The counter-argument is that in situations of this kind the classical entitlement of the promisee is to be placed in the same position as if the contract had been properly performed, and that this can only be achieved by substantial damages which can if desired be laid out in making good the promisor’s default.

The cases show that “no damage” arguments of this kind can be advanced

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