Law
Equitable Remedies
Equitable remedies refer to the types of relief that a court can grant in situations where monetary damages are not sufficient to address a legal wrong. These remedies are based on principles of fairness and justice, and they include specific performance, injunctions, and equitable compensation. Equitable remedies are often used in cases involving breach of contract, property disputes, and unfair competition.
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12 Key excerpts on "Equitable Remedies"
eBook - ePub- Bruce E. Altschuler, Celia A. Sgroi, Margaret R. Ryniker(Authors)
- 2016(Publication Date)
- Routledge(Publisher)
Equity provides flexible remedies designed to do substantial justice in situations in which damages are unavailable or are inadequate to enforce the particular right or redress the particular wrong complained of by the plaintiff. Remedies such as restitution (restoring a person to the position he or she occupied prior to a loss or injury), reformation (which is the rewriting of a contract in a situation where the written provisions do not express what the parties actually agreed to), rescission (the cancellation of a fraudulent or unfair and unconscionable contract), and declaratory judgment today occupy a kind of border area between law and equity, although they all began as Equitable Remedies. Although the word equity has a variety of meanings, in this chapter it refers to a body of rules, remedies, and procedures that first grew up in England to supplement, and temper the effects of, the English common law. Equity was a response to a rigid and formalized legal system that was producing too many inadequate or unacceptable results. The common law operated on the theory that no right existed if there was no remedy to enforce the right claimed. In too many situations the common law recognized no remedy for a claimed right; or the remedy available, damages, was inadequate in the circumstances of the case; or the rule applied in a particular case led to an unjust result. In these situations, equity, as administered by the Lord Chancellor of England, intervened on the petition of the dissatisfied litigant to render substantial justice on a case-by-case basis. From the beginning, equity was thought of as an extraordinary procedure—that is, it was only available in cases in which the law did not act or was ineffective. Equity was discretionary, flexible, based on fairness and good conscience, and offered procedures and remedies that were more modern than those available in the common-law courts
eBook - PDF- Judith Bray(Author)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
key points KEY POINTS • historically, common law remedies did not provide adequate compensation; • common law provided one remedy: monetary compensation; • equity supplemented the common law by providing a broader range of remedies; • Equitable Remedies include injunctions: specific performance, rescission and rectification; and • Equitable Remedies are discretionary and are never awarded as of right. Equitable Remedies 2 13 2.2 Specific Performance 2.1 INTRODUCTION: BACKGROUND TO Equitable Remedies One of the main criticisms of the early common law was the lack of flexibility in the type of remedy that it was willing to award. With common law the only remedy was the award of damages, but this was not always an adequate remedy. The claimants may have wished for a type of behaviour to cease, or perhaps they may have wished for the defendant to act in a particular way. A monetary payment may not have addressed the basis of the claim. It was only when claimants petitioned the king that remedies other than damages began to be granted. The grant of these remedies was discretionary, so the claimant had no assurance that the remedy would be granted. The king may have awarded a remedy for one claim but refused another claim, even though the facts were very similar. Equitable Remedies are still awarded on a discretionary basis today. Since the fusion of common law and equity, all courts are able to award Equitable Remedies; they are limited to the courts of equity known as courts of chancery. 2.2 SPECIFIC PERFORMANCE Definition: Specific performance is an order from the court compelling the defend- ant to perform duties agreed under a contract. Specific performance will not be awarded in all types of contracts. There are many types of contract where it will not be awarded. Further, it will not be awarded in certain circumstances.
eBook - PDF- Michael Bryan, Vicki Vann, Susan Barkehall Thomas(Authors)
- 2017(Publication Date)
- Cambridge University Press(Publisher)
85 Where the injunction is sought in respect of a purely equitable right, another remedy may be appropriate, such as a monetary award. 86 ................................................................................................................................................................................................................................ 79 (1852) 1 De GM & G 604; 42 ER 687. See [3.7]. 80 See chapter 6. 81 Argyll v Argyll [1967] Ch 302. 82 Kettles & Gas Appliances Ltd v Anthony Hordern & Sons Ltd (1934) 35 SR (NSW) 108. 83 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425. 84 (1927) 40 CLR 321. 85 For example, see Miller v Jackson [1977] QB 966. 86 See chapter 4. B 48 PART B: Equitable Remedies Finally, the unsuccessful plaintiff may be entitled to equitable damages in lieu of the specific performance or injunction sought. Equitable damages [3:35] Damages are a common law concept. Equity has no inherent jurisdiction to award ‘dam- ages’. Before the enactment of the judicature legislation in the nineteenth century, the separation of common law courts from the court of equity sometimes caused problems for litigants claiming the Equitable Remedies of specific performance or injunction. For example, an equity judge might, despite the vendor’s breach of a contract to sell land, refuse to order specific performance on discretionary grounds. If the plaintiff wanted to obtain damages for breach after the application for the equitable remedy had been dismissed, he would have to start a new action in the common law courts and prove the breach of contract all over again. [3:36] The Chancery Amendment Act 1858 (Imp), often referred to as Lord Cairns’ Act, was enacted to solve this problem. It empowered a judge exercising equitable jurisdiction to award damages instead of, or in addition to, specific performance or an injunction. The Act has been enacted in all Australian States and Territories.
eBook - PDF- Judith Riches(Author)
- 2016(Publication Date)
- Routledge(Publisher)
Equitable Remedies 14 Revision objectives ? Understand the law Remember the details Reflect critically on areas of debate Contextualise Apply your skills and knowledge American Cyanamid Human Rights Act 1998 ? a Chapter Map General principles regarding injunctions Types of injunction Defences to claims for an injunction A freezing injunction, a search order Guidelines governing the grant of an interim injunction Special types of interim injunction Injunctions Interim injunctions Mandatory, prohibitory, interim, perpetual, quia timet Delay by claimant, hardship to defendant, claimant did not come with clean hands, public interest to be taken into account Must be interference with legal or equitable right; it is a discretionary remedy; damages inadequate; conduct of claimant relevant; equity acts in personam Contracts where specific performance is unlikely to be ordered Contracts where specific performance may be ordered Defences to a decree of specific performance Specific performance 304 Optimize Equity and Trusts Types of injunction Jurisdiction to grant injunctions is governed by s37(1) Senior Courts Act 1981. Classification of injunctions According to the nature of the obligation According to the duration of the injunction A mandatory injunction, i.e. an order requiring the defendant to act A prohibitory injunction, i.e. an order requiring the defendant to refrain from acting An interim injunction, formerly called an interlocutory injunction A perpetual injunction, i.e. a final or permanent injunction A mandatory injunction The courts are reluctant to grant a mandatory injunction that compels a defend- ant to perform an act. This is partly because of the need to phrase the order suf- ficiently precisely to make it clear what the defendant is required to do, and partly because the court may be required to monitor performance.
- Simone Degeling, Jason NE Varuhas, Simone Degeling, Jason NE Varuhas(Authors)
- 2017(Publication Date)
- Hart Publishing(Publisher)
It is imperative to distinguish between liabilities arising from breaches of equitable obligation, such as breach of trust or fiduciary duty and liabilities which arise independently of the equitable wrong. For exam-ple, it is relatively straightforward to conceive of the equitable remedy of specific performance as a means of exercising or fulfilling the plaintiff’s primary right to performance of the underlying obligation. The same logic underpins the creditor who enforces a debt. The plaintiff seeks a money remedy, but the underlying right being enforced is the primary right to performance. This contrasts, for example, with the plaintiff who claims compensatory damages for breach of contract. Dam-ages are also a monetary remedy, but in this instance the right to damages only arises because of the existence of the wrong of breach of contract. The right being realised is a secondary or remedial right. Differentiating between primary rights and remedial rights is at the heart of the terminology which divides cases according to the labels ‘substitutive compen-sation’ and ‘reparative compensation’. As explained by Edelman J in Agricultural Land Management v Jackson [No 2] 38 these terms are suggested by Dr Steven Elliott whose writing has shone light and brought much clarity to this area of the law … [Sub-stitutive compensation is] based on the common account, [and] describes a claim for the substituted value of the asset dissipated without authority: it demands that the trustee perform his or her duty to maintain the assets or fund. [Reparative compensation is] based on the account on the basis of wilful default, [and] describes a claim for reparation for the loss suffered by breach of duty. 39 The use of the terms reparative compensation and substitutive compensation is not without controversy. 40 However, leaving aside labelling what is vital is to engage with the substance of the remedies involved.
eBook - PDF- Jason NE Varuhas, Nicole Moreham, Jason NE Varuhas, Nicole Moreham(Authors)
- 2018(Publication Date)
- Hart Publishing(Publisher)
Equity is a series of glosses and appendices to the common law, 5 including statute. When looking through equity to the potential legal devel-opments of the future, it is inevitable that some such developments will be found unsuited to equity jurisprudence. Equity jurisprudence is a series of glosses and appendices to the law because it is not a complete parallel system of law. Equity jurisprudence is an incomplete system in that sense, because the many grounds on which equity jurisdiction can be objected to in many situations ensure that the system of equity contains gaps. Much of what follows therefore addresses the common law because of, rather than despite, the use of an equitable lens. For consideration of how privacy remedies might develop in the judge-made law brings into sight both equity’s limits and the special capacity of equity to effect legal change. The limits of equity are such that in several respects the topic of remedies for infringements of privacy might be expected to become a topic principally of the judge-made common law. That suggestion is offered on the basis of the case law of Australia, Canada, England, Hong Kong and New Zealand. (The case law of the United States has developed on such distinct lines as to make immediately useful comparisons difficult, and cases in point do not exist in such pertinent common law jurisdictions as Singapore.) The chapter advances the following particular points. If the ‘extended action’ for breach of confidence remains the chief means of directly protecting interests in privacy, the forms of available relief will include the standard Equitable Remedies for breach of confidence: injunctions, accounts of profits, equitable compensation, and delivery up and destruction of documents or goods.
eBook - PDF- Michael Bryan, Vicki Vann(Authors)
- 2012(Publication Date)
- Cambridge University Press(Publisher)
Equitable damages Damages are a common law concept. Equity has no jurisdiction to award ‘damages’. [3.33] Before the enactment of the judicature legislation in the nineteenth century, the separation of common law courts from the court of equity sometimes caused problems for litigants claiming the Equitable Remedies of specific performance or injunction. For example, an equity judge might, despite the vendor’s breach of a contract to sell land, refuse to order specific performance on discretionary grounds. If the plaintiff wanted to obtain damages for breach after the application for the equitable remedy had been dismissed, he would have to start a new action in the common law courts and prove the breach of contract all over again. The Chancery Amendment Act 1858 (Imp), often referred to as Lord Cairns’ [3.34] Act, was enacted to solve this problem. It empowered a judge exercising equitable jurisdiction to award damages instead of, or in addition to, specific performance or ................................................................................................................................................................................. 75 (1927) 40 CLR 321. 76 See chapter 4. B 52 PART B Equitable Remedies an injunction. The Act has been enacted in all Australian States and Territories. 77 The terms of the New South Wales version are set out as an example: Damages in case for equitable relief Where the Court has power: (a) to grant an injunction against the breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or (b) to order the specific performance of any covenant, contract or agreement, the Court may award damages to the party injured either in addition to or in substitution for the injunction or specific performance. The Victorian and ACT versions of Lord Cairns’ Act are drafted in broader terms than their counterparts.
- Michael Bryan, Simone Degeling, Scott Donald, Vicki Vann(Authors)
- 2016(Publication Date)
- Cambridge University Press(Publisher)
Remedies are the law’s response to a wrong (or, more precisely, to a cause of action). When, exceptionally, a just response to a breach of contract so requires, the court should be able to grant the discretionary remedy of requiring a defendant to account to the plaintiff for the benefits he has received from his breach of contract. In the same way as a plaintiff’s interest in performance of a contract may render it just and equitable for the court to make an order for specific performance or grant an injunction, so the plaintiff’s interest in performance may make it just and equitable that the defendant should retain no benefit from his breach of contract. The state of the authorities encourages me to reach this conclusion, rather than the reverse. The law recognises that damages are not always a sufficient remedy for breach of contract. This is the foundation of the court’s jurisdiction to grant the remedies of specific performance and injunction. Even when awarding damages, the law does not adhere slavishly to the concept of compensation for financially measurable loss. When the circumstances require, damages are measured by reference to the benefit obtained by the wrongdoer. This applies to interference with property rights. Recently, the like approach has been adapted to breach of contract. Further, in certain circumstances an account of profits is ordered in preference to an award of damages. Sometimes the injured party is given the choice: either compensatory damages or an account of the wrongdoer’s profits. Breach of confidence is an instance of this. If confidential information is wrongfully divulged in breach of a non-disclosure agreement, it would be nothing short of sophistry to say that an account of profits may be ordered in respect of the equitable wrong but not in respect of the breach of contract which governs the relationship between the parties.
- Michael Bryan, Simone Degeling, Scott Donald, Vicki Vann(Authors)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
59 4 MONETARY REMEDIES IN EQUITY 4.1 Introduction 60 4.2 Accounts of profits 61 4.3 Equitable compensation 70 4.4 Common law principles and equitable compensation 87 4.5 Exemplary damages 90 60 PART B: Equitable Remedies B 4.1 Introduction Equity’s personal monetary remedies are the account of profits and equitable compensation: see textbook, chapter 4. Additionally, statutory damages are available in some cases, under versions of Lord Cairns’ Act discussed in chapter 3. The possibility of exemplary damages in equity will also be considered. As the name suggests, an account of profits is a profit-stripping remedy. It can be contrasted with the proprietary remedy of a constructive trust (see textbook, chapter 23) which can also achieve profit-stripping by reallocating beneficial ownership of property held by the defendant. Accounts of profits are only intended to redirect gains made by the wrongdoer; they are not intended to punish. Therefore allowances have to be made to the defendant for proven actual inputs, and may also be made for ‘value-adding’ inputs such as skill and expertise. However, equity proceeds from the assumption that all profits are recoverable; it is up to the defendant to prove otherwise. Accounts of profits are available for equitable wrongs such as breach of confidence, breach of trust, breach of fiduciary duty and third-party participation in a fiduciary breach. Legislation also makes them available in other causes of action such as intellectual property disputes. See, for example: Patents Act 1990 (Cth), s 122(1); Copyright Act 1968 (Cth), s 115(2). It is usually said that accounts of profits are not available for common law wrongs, and that appears to be the case in Australia. Equitable compensation (see textbook at [4.7]) is not aimed at profit-stripping. Instead, its goal is to compensate for loss made in breach of an equitable obligation.
eBook - ePubEquity Today
150 Years after the Judicature Reforms
- Ben McFarlane, Steven Elliott KC(Authors)
- 2023(Publication Date)
- Hart Publishing(Publisher)
Part IV Equitable Remedies
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8THE HONOURABLE JUSTICE EDELMANEquitable DamagesI n a legal world that is 150 years post-Judicature, the primary point of this chapter is simple. Lawyers should abandon their nervous reluctance to describe money awards for equitable wrongs as ‘damages’. That reluctance continues to frustrate the coherent development of the law of damages. The secondary point is to explain two matters. First, like common law damages, there are different species of damages in equity. Secondly, also like the common law, some money awards in equity are more properly described as equitable debt rather than as damages.I.THE OLD LANGUAGE: EQUITABLE ACCOUNTINGHistorically, it was legal heresy for ‘equitable’ to be used as an adjective to qualify ‘damages’. In 1998, Millett LJ spoke of this historical attitude, saying extrajudicially: ‘Woe betide a Chancery Junior who spoke of “damages for breach of trust” or “damages for breach of fiduciary duty”’.1 A reason for this attitude was that historically the jury was seen as the proper mechanism for assessing and awarding damages but judges in Chancery sat without juries. So the procedures and the language developed by the Court of Chancery, borrowed from the common law account against receivers which had fallen into desuetude, were the procedures and language of ‘accounting’.In 1868, Edmund Snell spoke of account in equity in the classic terms of asking whether the parties were in a relationship that permitted equity to order an account. The relationships included: those that were fiduciary, such as a principal seeking an account from an agent or a beneficiary from a trustee; relationships where each of two parties has paid money on the other’s account; or where an account is too complicated for the cumbersome procedures of the common law courts.2 There were three types of account.3 As Kindersley VC put the first two:4 the first was an account of administration, ‘a decree compelling [the accounting party] to account only for what he has received’; the second, which was ‘entirely grounded on misconduct’, was an account on the basis of wilful default ‘for what he might, without his wilful neglect or default, have received, although he has not received it’. The liability for ‘wilful default’ required only a ‘lack of ordinary prudence or due diligence’.5 Upon showing a lack of prudence, the court would surcharge the account by the amount that should have been received or it would falsify the account to remove a claimed expense.6 The third type of account was the account of profits. As the Lord Chancellor said in Jegon v Vivian (No 2),7 the Court of Chancery considered that it never allowed a person ‘to make profit by a wrong’. Most commonly, where the person was in a relationship in which they had expressly or impliedly undertaken to act in the interests of another then the court would order that an account of any profits be made by the principal from the relationship.8
eBook - PDF- Katy Barnett, Sirko Harder(Authors)
- 2018(Publication Date)
- Cambridge University Press(Publisher)
PART 3 REMEDIES COMPELLING PERFORMANCE AND RELATED REMEDIES 289 3 1 0 SPECIFIC PERFORMANCE 291 I Introduction [10:1] A remedy is specific when the plaintiff seeks to get the court to coerce the defendant into doing (or not doing) a particular thing. The word ‘coercion’ is used advisedly. The court orders the defendant to do (or not to do) the particular thing, and if the defendant refuses to comply, the court may use measures such as imprisonment, sequestration and fines to encourage compli- ance with its order. 1 The two most important examples of specific relief in Australia are the decree of specific performance and the injunction. This chapter will consider specific perform- ance, and the next chapter will consider injunctions. Specific performance relates to ordering the defendant to comply with the terms of a contract, but injunctions may be ordered across private law and beyond. Specific performance is exclusively equitable, and generally operates in relation to a common law cause of action, namely, breach of contract. [10:2] Both specific performance and injunctions are Equitable Remedies, meaning that they originated in the Court of Chancery. In Mayfair Trading Co v Dreyer, Dixon J explained that historically, a plaintiff needed to show ‘an equity’ to relief before the Court of Chancery would award specific relief. 2 Equitable Remedies are no longer awarded by a separate Court of Chancery in England or Australia because common law and equitable courts have been administratively and procedurally fused, and courts have a concurrent jurisdiction to adminis- ter common law and equity. 3 It was previously necessary for a plaintiff who unsuccessfully attempted to claim equitable relief in the Court of Chancery to begin again in the common law courts. Lord Cairns’ Act was an early attempt to rectify this by giving Courts of Chancery the power to award damages in lieu of specific performance or an injunction.
eBook - ePubRestitution
Civil Liability for Unjust Enrichment
- Ward Farnsworth(Author)
- 2014(Publication Date)
- University of Chicago Press(Publisher)
CHAPTER SEVENEquitable RemediesSometimes the plaintiff in a restitution case doesn’t want a personal judgment that calls for the defendant to pay a certain amount of money. The plaintiff wants specific relief: a judgment awarding him particular property that the defendant holds or at least an interest in the property. The law of restitution offers four basic devices for taking property back from defendants in this way: a constructive trust, an equitable lien, subrogation, and rescission. This chapter explains how those devices work. We will consider each of them in detail in a moment, but it will help to start with a quick overview.A constructive trust is an order stating that property to which the defendant holds title should and does belong to the plaintiff and must be delivered to him. It can be used simply to recover property to which the defendant obtained title wrongfully, as by fraud, but its more distinct use is to allow recovery of property that has changed form since it left the plaintiff’s hands. Perhaps the defendant traded or sold the plaintiff’s property for something else. The court imposes a constructive trust on the something else, and the plaintiff takes it (“takes it back,” one often wants to say, though the thing he receives may not be exactly the thing that he lost).Today the constructive trust can become important in the cases discussed in this book’s chapter on takings: situations where the defendant has wrongfully made off with the plaintiff’s property or has received it from a wrongdoer, and the plaintiff seeks the return of the very thing taken, not just the declaration of a judicially backed debt. The constructive trust also occasionally gets used in other circumstances: in cases of mistake, or when someone promises to transfer property in some way—for example, by including a provision in his will or by buying life insurance—in exchange for a certain act by the plaintiff. The plaintiff performs his side of the agreement, but the promising party does not—and then he dies. A constructive trust may be placed on the untransferred property for the plaintiff’s benefit.1
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