Equitable Remedies

Question 1

What are equitable remedies?

Answer 1

-Specific Performance.
-Injunctions
-Discretionary
Physical remedies.

Question 2

What happens when there is conflict between common law and equity?

Answer 2

Equity law prevails.

Question 3

What is equity law?

Answer 3

-Judge made law.
-By providing universally recognised fairness this is a better way to deliver justice, in comparison to common law which can be inflexible.

Question 4

What is the rule for common law remedies?

Answer 4

To place the plaintiff/claimant in the position as if the contract had been performed, often through the form of damages.

Question 5

When is equitable remedies awarded?

Answer 5

Not available as of right and awarded subject to the discretion of the court.

Usually court considers common law remedies first (damages which can be automatically given), if this doesn’t deliver fairness and justice, equitable remedies will then be considered.

Question 6

What is specific performance?

Answer 6

-An order to continue the contract as it is.

Question 7

What is an injunction?

Answer 7

An order not to do a certain thing. This is usually prohibited, as mandatory is rare.

These are flexible, yet have consequences for how the contract will proceed.

Question 8

When is specific performance granted?

Answer 8

-When damages are an inadequate remedy.
-Must not involve the personal service of D.
-Must not require constant supervision of the court.
-The terms of the contract must not be too vague.
-Must not impose severe hardship on D.
-Claimant must come with ‘clean hands’ and contract must not be unfair.
-Both must perform, mutuality of the remedy.
-Subject matter is so unique that no damages can compensate for the loss.

Question 9

What is commercial uniqueness?

Answer 9

Assesses the subject matter in relation to its commercial value.
At the time of the contract there was nothing like it in the market, no substitution other than the subject matter would be fair and just.

Question 10

When are damages an inadequate remedy?

Answer 10

When damages are difficult to quantify, impossibility of damages suffered.

Question 11

What does discretionary mean?

Answer 11

Exercising judgment to determine the best possible solution. Up to the court to decide and to provide, subject to certain equitable remedies (or maxims).

Question 12

How are some common law remedies calculated?

Answer 12

-Expectational loss.
-Reliance loss
-Restitution loss.

Question 13

What is mitigation?

Answer 13

Claimant is expected to take reasonable steps to do damage control, minimise the amount of loss,

Question 14

What are mandatory injunctions?

Answer 14

These can be interlocutory (in the middle of proceedings), for those awaiting trial of specific performance or when there has been a dispute between the two parties.
These are to prevent things from getting worse via a ‘balance of convenience.’

Question 15

How often are injunctions used?

Answer 15

Few cases deal with injunctions as a final remedy. They require something very serious to be tried.

Question 16

Does the innocent party have to accept the repudiatory breach of the other party?

Answer 16

They can choose not to accept this breach, so they will continue to perform their side of the contract, and seek a remedy when the other party fails to perform.

Question 17

What are interlocutory injunctions?

Answer 17

To prevent things from getting worse.
There must be a serious issue to be tried and a ‘balance of convenience.’

Question 18

What is the interlocutory stage?

Answer 18

Already a dispute between the two parties.
Prohibits someone from doing something in the middle of proceedings towards finding a remedy.

Question 19

Does the innocent party have to accept a repudiatory breach by the other party?

Answer 19

They do not have to accept this, instead they can continue to perform their own side and seek remedy when the other party fails to perform.

Question 20

What is risky about the innocent party not accepting the repudiatory breach?

Answer 20

If the innocent party commits a breach of their own obligations, this would entitle the initial contract breaker to sue for damages.

Question 21

What happens if the innocent party accepts the repudiatory breach?

Answer 21

They can immediately sue for damages.

Question 22

What is an anticipatory breach?

Answer 22

Where the repudiation happens before the date of performance.

Question 23

What can happen with specific performance?

Answer 23

The claimant can ask the court to order D to perform his promise, D will then be in contempt of court if he does not perform.

Question 24

What is an injunction?

Answer 24

This is where the court orders D not to do something.

Question 25

When can inadequate damages occur?

Answer 25

True loss is not legally recoverable or suffered by a third party.. In these cases specific performance may be preferred.

Question 26

What is an interim injunction?

Answer 26

Ø Temporary measure to give relief until a full hearing can be arranged and a final hearing made.
Often used in emergencies

Question 27

What is the doctrine of privity?

Answer 27

This limits who can claim damages - only a party to the contract can claim damages (with exceptions). Therefore, a third party cannot normally claim damages even if the contract is to benefit them, the court may order specific performance as the damages are inadequate.

Question 28

What is an exemption clause?

Answer 28

Excludes or seriously limits the damages which may be awarded.

Question 29

Why are contracts of personal service not usually specifically performable?

Answer 29

To force someone to work for someone they do not want to work for be an undue restriction on personal liability.

Question 30

What is mutuality?

Answer 30

Where one party wants to claim specific performance, the other party must have the option to match this by claiming specific performance himself.

Question 31

When must mutuality be present?

Answer 31

Available at the time the contract was made.
(Fry on specific performance).

Question 32

What is an alternative view on mutuality?

Answer 32

If specific performance isn’t available for a party, instead they must be assured like, the other party already having performed.

Question 33

What is discretion?

Answer 33

Left to individual choice or judgement , exercised at one’s own discretion, or available for discretionary use.
Equitable remedies are discretionary.

Question 34

What is action for the price?

Answer 34

> A can enforce a promise the sum directly, rather than an indirect claim for compensatory damages.

> A must have fully performed and demonstrate this, they cannot recover anything if they only partly performed.

Question 35

What must the innocent party have to not accept the breach?

Answer 35

-Be able to perform the contract without the other party’s co-operation.
-Legitimate interest to perform and claim the contract price.

Question 36

What happens if the innocent party doesn’t accept the breach?

Answer 36

The contract will not be terminated, they will not be immediately suing for damages (involves a duty to mitigate).

Question 37

What must happen to qualify for specific performance or an injunction?

Answer 37

-Damages as an inadequate remedy
-Personal service contracts rarely qualify.
-Must not require constant supervision of the court.
-Mutuality= D must have recieved performance by C or assured of being able to obtain such performance.