LS 161- REMEDIES IN PRIVATE LAW
NOTES
EQUITABLE REMEDIES
We have so far looked at damages as a remedy available to a wronged party as of right at law.
We shall now look at equitable remedies as distinct from legal remedies. Equity through
inventiveness developed a diversity of remedies. This follows the equitable maxim” equity does
not suffer a wrong to be without a remedy”. At law the normal relief available was an award of
damages which was enforced by forms of execution primarily directed to realizing the sum
award.
Equity came in to supplement the limited range of legal remedies by providing a wide range of
new remedies. Through the years of the development of equity the remedies evolved and
became settled in their rules and principles. The remedies have common features as follows:
1. Equity acts in personam: by the doctrine of acting in personam, the defendant would be
ordered to do what appeared to the court of equity to be just and equitable, and if the
defendant disobeyed, he or she would be committed or attached to prison for contempt of
court;
2. Equitable remedies are discretionary: equitable remedies are in general discretionary. At
law a Plaintiff who proved his/her case is entitled as of right not only to his/her damages
however unfair the result. Equity on the other hand exercised a discretion in granting its
remedies looking to the conduct not merely of the defendant but also of the plaintiff. The
court of equity would therefore usually refuse relief to those who had “unclean hands” or
who were not willing to do equity (“he who seeks equity must do equity”) or who slept
on their rights or whose claim would produce unfair results. Plaintiffs such as these
would be left to whatever remedy they might have at law; and if the Plaintiff had an
adequate remedy at law that of itself was a ground for refusing equitable relief.
The principal remedies that equity evolved are those of:
i. specific performance
ii. rescission
iii. rectification injunctions
iv. delivery-up and cancellation of documents\we
v. account; and
vi. appointment of receivers
We shall now look at some of them in more detail
SPECIFIC PERFORMANCE
The only remedy which the common law could grant for breach of contract was an award of
damages. In equity however the due performance of the contract itself was in any case enforced
upon the ground of inadequacy of the damages recoverable for the breach. Jurisdiction in
specific performance is based on the inadequacy of the remedy at law and so it follows as a
general principle that equity will not interfere where damages at law will give a party the full
compensation to which he is entitled and will put him in a position as beneficial to him as it the
agreement had been specifically performed. No prove of breach is required as the mere existence
of the contract coupled with circumstances which make it equitable to grant a decree may be
sufficient for an action for specific performance.
The commonest cases in which courts specifically enforce a contract is where the contract is for
the sale of land or for granting of a lease. Contracts relating to land differ greatly from contracts
respecting most goods because land may have a peculiar value to the purchaser or lessee.
However certain contracts cannot be specifically performed such as:
i. Illegal or immoral contracts
ii. Agreements without consideration
iii. Contracts involving personal skill
iv. Contracts requiring constant supervision
2nd ASSIGNMENT
For your second assignment explain in not more than 1000 words why the above 4 mentioned
types of contracts cannot be ordered to be specifically performed.
Assignment is due n Thursday 29 July 2020
Only soft copies to be submitted
