Contract Law - Remedies other than Damages Flashcards
Equitable Remedies
To make someone do something or stop doing something
Discretionary
Special defences which apply to all equitable remedies
Specific performance
Order requiring someone to perform obligations under contract
Will not be ordered if damages would be an adequate remedy - most of the time damages will be adequate
Might order SP if subject matter is unique and irreplaceable
Injunction
Order not to do something which would breach a contract
If damages would be an adequate remedy an injunction will not be ordered
Personal Services Contracts
No specific performance
No injunction if effect would be to enforce a personal service contract
Restitutionary Remedies
General legal principle preventing someone being unjustly enriched at someone else’s expense
Available when:
- Person has been enrinched or benefitted
- Enrichment must be at the expense of the other party
- Enrichment must be unjust
- There are no defences
Total failure of consideration
E.g. existing contract is terminated
Restitution available
Quantum Meruit
Payment for services
Restitutionary remedy
Expectation Interest
How much it would cost to cure the defect or the difference in value between what was actually provided and what should have been
Reliance Interest
Expenses incurred in reliance on the contract
Non-monetary losses
Physical injury, loss of amenity or loss of reputation
Nominal damages
If no loss is proven
Remoteness
Loss must have been a serious possibility or not unlikely and flow naturally from the breach or be in the reasonable contemplation of the parties
Liquidated Damages Clauses
Pre-estimate of innocent party’s loss
Enforceable
Penalty Clauses
Unenforceable unless party can prove clause protects a legitimate business interest and charge is a proportionate way of protecting that interest
Will be considered a penalty clause if detriment is out of proportion to the obligation breached
Defences to claims for equitable remedies
Unconscionable behaviour
Waiver
Unreasonable delay
