Fiche de Common Law: Remedies PDF

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Fiche de Common Law: Remedies...

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Fiche Common law REMEDIES What can you do about contracts where things have gone wrong? There are three categories of remedies: - Specific remedies: e.g. specific performance – you ask for e.g. the judge to order the parties to perform; - Damages: if someone does not do what they should have done, what you can do is to get money from them; - Termination. Contracts is about a performance. There is a hierarchy: civil law is giving much more credit to performing. Common law has been more pragmatic. In English law, this breach is very quickly turned into a second obligation – which is to pay money. Specific performance is an exception. You have an order to perform and there are heavy sanctions where there is a breach. There is however a primacy of damages remedy: courts will not order specific performance unless damages would be an inadequate remedy. There is a subsidiary aspect of the equitable remedy. When are damages inadequate? For the case of antiques, or unique objects, they are inadequate. Land as well is unique. Discretionary remedies: you have to prove you merit it. Damages are not discretionary but are compulsory. Concerning damages, they are about breaching a primary obligation so that you have a secondary obligation to pay damages. Common law is very much structured around this. It follows the breach of the primary obligation. It is a substitutional remedy, as the money will be given rather than the performance. Contract is about promise to perform something: what would have the situation looked like if the person had performed the contract? You put the person in the position they would have been in if the contract would have been performed....