Non-monetary remedy - Equitable Remedies Flashcards
What are equitable remedies?
Specific performance and injunction are equitable remedies given where monetary compensation in the form of damages may not be an adequate remedy. However, the party seeking to rely on an equitable remedy must have “clean hands” and his own conduct to the contract should be without fault.
What is specific performance?
This is a court order commanding a person to perform his contractual obligations. It is an equitable remedy and is available only:
(a) where it is fair and reasonable to make such an order; and
(b) at the discretion of the court
How is specific performance being enforced?
An order for specific performance is given to enforce a positive obligation owed to the plaintiff. It will only be granted if the court decides that damages are an inadequate or inappropriate remedy.
Specific performance is only granted if the contract involves land, antiques or vintage cars, etc which are unique or unusual and not easily replaceable. In other words, no amount of monetary compensation would enable the buyer to obtain an identical item.
If the goods are easily replaceable, then damages would be an adequate remedy.
When is specific performance usually not granted?
(a) where damages are an adequate remedy;
(b) the contract breached involves personal services; and
(c) performance of the contract would require the constant supervision of the court, specific performance would not be an available remedy.
What is injunction?
This is a court order restraining a person from breaching a negative covenant in his contract. Like specific performance, it is an equitable remedy and is granted only:
(a) where it is fair and reasonable to make such an order; and
(b) damages is not an adequate remedy.
An injunction is to restraint a defendant from breaching a negative obligation.
What are some similarities between specific performance and injunction?
Both specific performance and injunction:
(a) requires a court order.
(b) are equitable remedies (i.e discretionary)
(c) granted if fair and reasonable
(d) where damages are inappropriate
What are some differences between specific performance and injunction?
Specific performance is not granted where personal services are involved or constant supervision is required.
Specific performance enforces a positive obligation while injunction restrains a defendant from breaching a negative obligation in the contract.
