Equitable and Other remedies Flashcards
• Suing for the price or for a reasonable sum for goods/work supplied. • Obtaining a court order to compel a party to perform a contractual obligation or otherwise stop a breach. • Advising on recovery of sums paid under a contract; • Advising on damages awarded on a restitutionary basis • Advising on guarantees and indemnities.
Other than damages being the main remedy for a breach and in certain circumstances the innocent party being entitled to terminate the future performance of the contract. What other remedies are available?
- Action for an agreed Sum
- Specific performance
- Injunction
- Restitution
- Restitutionary damages
- Guarantees
- Indemnities
What is specific performance
An equitable remedy. The idea here is that the claimant is asking the court, not for compensation, but for an order requiring actual performance.
In other words making the defendant do what they agreed to do.
When would specific performance be available?
Specific performance is not an alternative remedy to damages. It is only available if damage are not an adequate remedy eg in relation to purchases of land.
Where are you likely to see specific performance remedies used.
In contracts for the sale of land.
Contrast that with sales of goods, where you cannot generally get specific performance- if a seller refuses to supply particular goods the buyer can claim damages and use the compensation to buy goods elsewhere that are just the same.
Where are you unlikely to see specific performance being used as a remedy.
Unlikely to be used in employment contracts. The reason for this restriction is that such contracts depend on a certain amount of trust and confidence. If the relationship between the parties has broken down, it would be inappropriate to force them to work together.
Is specific performance available ‘as of right’
No as it is an equitable remedy it is at the discretion of the court. It will only be awarded when it is just and equitable to do so.
The court will consider whether the claimant has acted equitable and will also look at whether the order would cause disproportionate hardship to the defendant.
What is an injunction as a remedy
Injunctions are more commonly used to restrain the defendant from doing what they have agreed not to do.
Like specific performance, an injunction is an equitable remedy. So it is only available at the description of the court and will only be awarded where damages would be inadequate.
When would an injunction not be granted.
If the effect would be to compel the defendant to do acts that they could not be ordered to do by specific performance.
eg the courts will not order an unjunction that would effectively force an employee to work for a particular employer.
what is Restitution as a remedy and when would it arise
it may arise in a number of different situations, not just where there has been a breach of contract. Indeed it may arise where no contract has come into existence at all.
The idea behind a restitutionary damage is to prevent one party being unjustly enriched at the expense of the other party. There has to be an element of unjust enrichment.
What type of restitution claim will arise where there has been a total failure of consideration.
If one party has paid money to the other under a contract, the payer can bring an action in restitution to recover the money if the payee is in breach and there has been a total failure of consideration.
A total failure of consideration is where the payee has not done any part of what they were supposed to do under a contract.
What is an action for an agreed sum
It is simply suing for a fixed amount of money that is owed- normally the price of goods or services supplied under a contract.
It is much more of a direct remedy than a claim for damages.
What is the criteria for an agreed sum
Money has to be owed and the date of payment must have fallen due.
once a claimant can establish their right to the money, they can claim it, issues such a proving loss and showing that it is not too remote drop out of the picture.
What restitutionary remedy will be availble where work was done or goods have been supplied but the contract has been broken.
Where one party has supplied good or done work and then the other party breaches the contract, the party suppling the goods or doing the work may be able to bring a claim in restitution for a reasonable sum for the work done or goods supplied.
This would be as an alternative to claim for damages, but important to note that the supplier has a choice bet ween claiming a reasonable sum or damages.
What restitutionary remedy will be available where a contract was never formed?
In some cases a party may do work for some before a contract has been finalised.
This sometimes happens with building work, where the negations between the parties may be complex and time consuming but there is a desire to start the work as soon as possible.
If a contract is ultimately not formed the building contractor would be entitled to a reasonable sum for the work they had done.
What is Restutionary damages and how does it differ from restitution?
Gains made that do not, or at least do not necessary reflect the loss to the claimant. The key here is that the defendant has not made gains at the expense of the claimant.
