Equitable & Other Remedies Flashcards
What is an action for an agreed sum?
An action for an agreed sum is simply suing for a fixed amount of money that is owed – normally
the price of goods or services supplied under a contract.
Money has to be owed and the date for payment must have fallen due.
Issues such as proving loss and showing that it is not too remote
drop out of the picture.
What is specific performance?
It is an equitable remedy that requires the defendant to do what they agreed to do.
Specific performance is
generally only available if damages are not an adequate remedy
When will specific performance usually not be granted?
Specific performance will not usually be granted for contracts involving services such as an employment contract. 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, it is at the discretion of the court and will only be awarded when it is just and equitable to do so.
The court will consider whether the claimant has acted equitably and will also look at whether the order would cause disproportionate hardship to the defendant.
What is an injunction?
It is an equitable remedy that will only be awarded where damages would be inadequate.
It restrains the defendant from doing what they have agreed not to do.
When will an injunction not be granted?
It will 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.
What is a restitutionary remedy?
A remedy that prevents one party being unjustly enriched at the expense of the other party.
When may restitution claims arise?
Where money has been paid by one party under the contract and there has been a total
failure of consideration; and
Where one party has done work for the other, or supplied goods to the other, and wants
to be compensated for the work done or goods delivered.
When is a claim in restitution not available?
In every case where there has been an element of unjust enrichment.
What is a total failure consideration?
A total failure of consideration is where one party has not done any part of what they were supposed to do under the contract.
When is a claim for compensation for work done or goods supplied relevant?
Where the contract has been broken: Where one party has supplied goods or done work and then the other party breaches the
contract, the party supplying 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.
Where a contract was never formed: In some cases a party may do work for someone before a contract has been finalised. If
a contract is ultimately not formed (eg because the negotiations break down) the party would be entitled to a reasonable sum for the work they had done.
When are restitutionary damages available?
Where the claimant may suffer no discernible financial loss
other than the opportunity to negotiate a release fee and where it would be unfair to allow
the defendant to take the full benefit of their breach of contract.
What is a contract of guarantee?
A contract under which one person (the guarantor) guarantees that if another person (the debtor) does not pay back money owed then the guarantor will pay the money instead.
What type of obligation is a guarantee?
A secondary obligation.
What are the requirements for a contract of guarantee to be valid?
It must be ‘evidenced in writing’ before the creditor seeks to enforce the contract and the contract must have been signed by the guarantor.
