In Co-operative Insurance Society v Argyll Holdings Ltd  Hoffman said that equitable remedies are “flexible and adaptable to meet the ends of equity.” Critically discuss this statement Bismillahi Rahmani Raheem While trusts, one of the jewels in the crown of equity, are institutional in nature, equitable remedies due to their discretionary nature are remedial in operation. For this reason, they arise and operate completely with regard to the discretion of the court and for this reason can be described perfectly with regards to the title quote. The reason is as highlighted in Wilson v Northampton equitable remedies reflect the jurisdiction of the court of equity ; since equity acts in personam, its remedies must act to remedy unconscionability that comes with leaving a claimant to his remedy in damages (See: Wormington v Miller). Having said that, while equitable remedies are a discretionary structural alternative to the common law remedy of damages, there is, as Hudson, notes a difference between strong and weak discretion, the discretion as far as equitable remedies are concerned is of the weaker type – their grant depends on the maxims of equity of which in this case the requirement that “he who seeks equity must do equity” is the most important since an equitable remedy should not cause undue hardship (Wormington v Miller). Besides this, the remedies of equity are also lead by their own guidelines. Due to time constraints and in order to provide a focused analysis this piece focuses on specific performance and the different types of interim injunction to evaluate the extent to which equitable remedies are flexible and adaptable to meet the ends of equity. Specific Performance: Where breach of contract or the threatened breach of a contract is concerned, as is highlighted in the case of Co-op v Argyll, there is an equitable structural alternative to damages in this regard in the form of specific performance. Under this equitable order the court may order an enforcement of contractual obligations between the parties as a remedy to the inadequacy of damages in a given case. As Watt notes, the subject matter of a given matter largely determines whether an order for specific performance should be given. Hudson explains this further; he points out that the consequence of a breach of an order for specific performance, as with all equitable remedies, is a finding of contempt of court (CHS Giles v Morris), since one of the punishments for this is the potentiality of imprisonment the courts place importance on the subject matter (SM) of the contract to avert the risk of inculpating large numbers of people into criminal liability. For the purposes of this question this guiding principle for the courts illustrates that the court in seeking to reach the ends of equity notes that within the reach of equity is a need to balance the degree of damage to a given party if the contract is not enforced. I will now illustrate this below. Where land is concerned, a grant of specific performance is almost always ordered due to the uniqueness of land and the inadequacy of damages in that regard (see: the case of Lord Baltimore). Where personalty is concerned the balancing act aforementioned is more discernable. For example in deciding whether an order for specific performance should be granted the court will ask itself whether the claimant can go to the market and get a product comparable to the one which they seek, this then determines the in/adequacy of damages (See: Falke v Gray). Thus, where readily available hepplewhite chairs were capable of being readily found damages were ordered for a breach while specific performance was ordered regarding a contract for rare Ming Dynasty antiques. The inadequacy of damages in the latter case shows how the court in providing remedies is guided both In Co-operative Insurance Society v Argyll Holdings Ltd  Hoffman said that equitable remedies are “flexible and adaptable to meet the ends of equity.” Critically discuss this statement by the principle that equity should not impose undue hardship (where the property is readily available and the breach is capable of being remedied monetarily) and the idea that equitable remedies should be flexible to meet the ends of equity. Furthermore, even where by all schemes the property in consideration is not unique but is of a class that has no market substitute the court will find an order for specific performance as is illustrated in the case of Sky Petroleum. There, a fuel strike meant that while petrol was not unique, it was largely unavailable and a failure by the defendants to provide Sky with fuel would have lead to undue hardship for the claimant incapable of being remedied by damages. Where personal contracts for personal service are considered, equity there too strikes a correct balance between its maxims and the need to achieve equity in the given case. In this regard two principles are of importance. From the case of Francisco v De Barnum we derive the idea that contracts for personal service are not to be specifically enforced due to the fact that to do so is a kin to enforcing slavery. A more implicit notion behind this is equitable maxim that equity will not act in vain (CHS Giles v Morris), because even if in these cases centred on the defendant’s personal skill the court make him act they cannot guarantee that he will act at his best or provide the best service thus equity should not be exercised only to turn out to have been done so in vain. Having said that although the court do not enforce these contracts they do realise that in a lot of these cases the defendant is worth money to the claimant’s – particularly in entertainment cases. Thus in the case of Lumley v Wagner, while the court would not enforce a contract for personal skill requiring a singer to sing at a given theatre, they did note that she was engaged for a personal skill and allowed for an injunction to prevent her from singing elsewhere, a similar result is seen in the case of Warner v Nelson. Both illustrate that even where one remedy seems unavailable for the parties another may come to his aid and thus shows how equity’s remedies are not only flexible but that they work together to meet the ends of equity. However, as these remedies are guided by the principle that he who seeks equity should do equity, Lumley v Wagner should be contrasted with Warren v Mendy. From the reading of these two cases it is apparent that the time left on the contract is of utmost importance – therefore in Lumley v Wagner no undue hardship would have been done by the enforcement of an injunction as the contract was for less than 5 months, however an injunction in Warren v Mendy was refused on the basis that it was to last for the 5 years left on the contract. To enforce it would not only be onerous but it would effectively end the career of the boxer concerned. The divergence between the two cases shows how the flexibility and adaptability of equity’s remedies are guided by where the equity in a given case lies. Interim Injunctions: The courts’ power to grant injunctions is statutorily recognised in section 37 of the Senior Courts Act 1981. Pursuant to this provision the court in granting or not granting and injunction must consider what is just and convenient in the given case. With various variations of mandatory, prohibitory and In Co-operative Insurance Society v Argyll Holdings Ltd  Hoffman said that equitable remedies are “flexible and adaptable to meet the ends of equity.” Critically discuss this statement quia tiem sub-types injunctions can be generally divided into two main types: perpetual and interim injunctions. This section focuses on the latter. Interim, or interluctory injunctions, are injunctions granted while awaiting a final order. As per the case of Jones v Pacaya they are granted in order to maintain the status quo while awaiting trial. As Davis and Virgo note, this type of remedy is essential to meeting the ends of equity as it prevents injustice in the interim. There are four types of interim injunction: two umbrella and two sub-types. The first are prohibitory interim injunction (American Cynamid) Mandatory interim injunctions – which operate under the American cynamide rules (De Falco v Crawley BC), Freezing orders (a type of interim prohibitory order: Mareva as codified in the Civil procedure rules.) and search orders (A type of interim mandatory order: Anton Piller as codified in the Civil Procedure rules) Previously in the case of traditional interim injunctions under the case of Harman Pictures v Osborne a claimant was required to go through a process of a mini trial before being granted the injunction. American Cynamide rules reduce this to a test of considering whether there is a serious question to be tried in court and not a vexatious claim, this has the potentiality to reach the ends of equity because it lowers the hurdles facing the claimant while Harman v Osborne would prevent them. Additionally the court will look at a balance of convenience which should indicate an award. Consequent to this Remedial vs Institutional Hudson: “weak vs strong discretion,” lead by various equitable principles: he who comes to equity must come with clean hands, Wormington v Miller: he who seeks equity must do equity (e.g. no undue hardship). Equitable remedies are structural alternatives to the common law remedy of damages: Wilson v Northampton: Equity acts INP so remedy unconscionability In addition to this each area has its own rules. This piece looks at 2 remedies: SP (structural alternative to Damages in BoC) and injunctions Injunctions: S.37 Senior Courts Act. Hudson: justice in the given case. Shelfer: Interim: Davis and Virgo: Preventing injustice. American Cynamide vs Harman Pics v Osborne Serious question to be tried. Balance of convenience – Francophone In Co-operative Insurance Society v Argyll Holdings Ltd  Hoffman said that equitable remedies are “flexible and adaptable to meet the ends of equity.” Critically discuss this statement Other factors: Series 5 - s12 Prima facie case – Diplock: irreparable damage Undertaking in damages: atkins and Denning fi Allen v Jambo FOs – prohibitory interim injunction Third Chandris Good arguable case EX PARTE Mortgage Corp v Sindhu – Hudson. Assets within jurisdiction; Third Chandris ;; CPR, BCCI SA; Davies and Virgo ; Practice Real risk of dissipation vs suffer irreparable harm SOs – Mandatory Anton pillar SW vs SO Warner-Reed HR Universal thermosensers Columbia Pics v Robinson Extremely strong case
Remedies For Breach Of Contract Essay
Remedies for breach of contract
Contrary to what most people might think, the solution for breach of contract is not designed to punish the guilty party, instead it is to protect and preserve the rights and reasonable expectations of the party seeking reimbursement. The purpose of the contract law is that in the event of one party not fulfilling their obligation towards the other party, the party harmed will be compensated for its losses. In most cases the standard solution for breach of contract is money reimbursement, however, in some special cases the court can assign the party to perform a specific performance or injunction. With money reimbursement the court will allow the harmed party to prove to the court the amount of money necessary to reimburse for the losses, in other words, to prove that the amount of money the harmed company is seeking will reflect the guilty company performing the contract. The innocent party has three available options to them, which include self-help remedies, judicial remedies and arbitration.
Self-help remedies centre on lawful acts, which do not involve the option of referring to the court or arbitration. The innocent party under the law may refuse to perform their obligations as stated in the contract until the other party is ready or already has performed its obligations. The solutions of termination and withholding performance are closely related to the seriousness of the breach. Other self-help remedies that the innocent party may use are: deposit penalty taken form the guilty party, set-off, lien, and enforcement of the security. In contracts that involve the sell of goods the innocent party has additional options of stoppage of transit and resale of goods.
Judicial Remedies is an option, which requires the parties to present their case before a court of expert jurisdiction. The options that are available are: to take action for damages, to sue for quantum meruit, to sue for specific performance or to sue for an injunction. In most cases the damages are given to compensate the innocent (injured) party if its expectations have not been meet or if there is a loss of bargain. The award for damages is a substitute remedy, which in common law is reflected by the monetary approach. Common law gives the option to the guilty party to either fulfil the contract or to pay the damages. The Equity law additionally gives the option of granting of specific performance and injunctions to restrain and actual or threatened breach of a negative stipulation. The plaintiff under the common law has the...
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