equitable remedies

Question 1

what are they? (2 THINGS)

2 characteristics of equitable remedies

4 important remedies

Answer 1

favourable order requested by a party.
“reasons wherefore” in a plaint introduce the remedies party is requesting.
THEY ARE NOT RULES BUT GUIDING PRINCIPLES!!!

1. they act in personam against the person whose conduct is complained about.
2. under the discretion of the court: remedies will apply when the relevant maxim has been met and fulfilled with the facts of the case.

Remedies:

1. specific performance
2. injunction
3. rescission
4. rectification

Question 2

SPECIFIC PERFORMANCE

2 cases

Answer 2

court order meant to compel a party to perform his side of the contract. refuse to comply, held in contempt of court. with a sentence of upto 2 years or a fine.

common in breach of contracts. e.g re tillot( 1892): where

1. awarded where damages are inadequate; on top of damages
2. where the enforcement of the order would not require constant supervision by the court. tito v Waddell; whether there is sufficient definition of what has to be done in order to comply with the order of the court. the court cannot be counter intuitive.
3. mutually enforceable: capacity. both parties can perform an obligation under that contract.

Question 3

INJUNCTIONS

types (3)

applicability of injunctions; CTT

Answer 3

court order which forbids a person from doing something. but we have mandatory injunctions which compel but they are more rare.

types:
A. A QUIA TIMET INJUNCTION: awarded to prevent imminent or apprehend a legal wrong before it occurs. strong grounds for it.

sought for while filing for a suit; within the plaint.
due to the issue of plaint being thrown out due to technicalities, its better to file for a quia time injunction in a supplementary document, to protect it from being thrown out.

this type of injunction must also meet the other requirements that an injunction has to.

Redland Bricks Ltd v Morris: ‘[T]o prevent the jurisdiction of the courts being stultified equity has invented the quia timet action, that is an action for an injunction to prevent an apprehended legal wrong, though none has occurred at present, and the suppliant for such an injunction is without any remedy at law.’

B. INTERIM INJUNCTION: suit hasn’t started but the plaint has to have been filled. acts as a stay in proceedings to stop imminent harm to the party who filed it.

last minute emergency to imminent danger. e.g
due to the serious nature and consequences of the grant of an injunction, the courts tend to be cautious in granting them, particularly interim injunctions where a case has not yet been heard or proved, and especially where the grant of an injunction would result in undue financial hardship on the defendant. For this reason, the court will commonly request an undertaking from the claimant on the grant of an interim injunction to pay damages in respect of any financial loss caused to the defendant by the grant of the order. = EXPENSIVE
GIELLA V CASSMAN BROWN: conjunctive test
1. prima facie case (mrao v first American bank of Kenya; legal right exists that has been infringed.

2. suffer irreparable injury which would not be adequately be covered by damages
   pius kipchirchir case:
3. balance of convenience: pius kipchirchir case: more of a balance of inconvenience and the plaintiff must show that the inconvenience they will suffer is more than that which the defendant will suffer if granted.

nguruman v kan bonded nelson: the test is to be applied separate, logically but sequentially.

C. PERPETUAL INJUNCTION:
issues as part of the judgement. bind the other party permanetly. Granted by decree. where a temporary injunction is made permanent.

Question 4

rescission

2 types

Answer 4

remedy that allows a transaction typically a voidable contract to be treated as if it never came into existence before.
Therefore, a flow that impairs the CONSENT given by thee parties.

1. Common law rescission:
   act of the party seeking rescission by communicating to the other party. no need for court order; self help. NARROW
   (M/M/D/I/I/U/I)

2. Equitable rescission; BROAD
equitable relief effected by the court. there must be an equitable vitiating factor. 
they are:
- negligent and innocent misrepresentation
- mistake as to deeds
- undue pressure, undue influence
- unconscionable conduct
- breach of fiduciary duty

Question 5

rectification

Answer 5

rectify a document that wrongly records the intentions of the parties to it.

equity looks at the intention of the parties not the form. subject to defenses such as delay.