The Effect of the Rule of Mutuality of Equitable Relief on Specific Performance by Injunction

1907 ◽  
Vol 7 (8) ◽  
pp. 613
Keyword(s):  
Specific Performance ◽  
Equitable Relief

29. Remedies beyond compensatory damages

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Breach Of Contract ◽  
Legitimate Interest ◽  
Specific Performance ◽  
Equitable Relief ◽  
Compensatory Damages

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving him of his profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform his contract. Injunctions can either prevent a person from breaching his contract (prohibitory injunctions) or force a person to comply with his contract (mandatory injunctions).

29. Remedies beyond compensatory damages

2021 ◽  
pp. 457-474
Author(s):  
Paul S. Davies
Keyword(s):  
Breach Of Contract ◽  
Legitimate Interest ◽  
Specific Performance ◽  
Equitable Relief ◽  
Compensatory Damages

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving them of their profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform their contract. Injunctions can either prevent a person from breaching their contract (prohibitory injunctions) or force a person to comply with their contract (mandatory injunctions).

Contract Remedies and Inalienable Rights

1986 ◽  
Vol 4 (1) ◽  
pp. 179-202 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Subject Matter ◽  
Breach Of Contract ◽  
External Resources ◽  
Personal Services ◽  
Specific Performance ◽  
Legal Relief ◽  
The Subject ◽  
Equitable Relief ◽  
Inalienable Rights ◽  
Consent Theory

I. IntroductionTwo kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights.My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable.I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources.

Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

2020 ◽  
Vol 68 (1) ◽  
pp. 1-54
Author(s):  
Leon Yehuda Anidjar ◽  
Ori Katz ◽  
Eyal Zamir
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Policy Implications ◽  
Breach Of Contract ◽  
Lab Experiments ◽  
Specific Performance ◽  
Lively Debate ◽  
The Common ◽  
Injured Party ◽  
Equitable Relief

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

INADEQUACY IN EQUITY OF COMMON LAW RELIEF: THE RELEVANCE OF CONTRACTUAL TERMS

2014 ◽  
Vol 73 (3) ◽  
pp. 493-496
Author(s):  
P.G. Turner
Keyword(s):  
Distinctive Feature ◽  
Common Law ◽  
Legal Rights ◽  
Exclusive Jurisdiction ◽  
Specific Performance ◽  
Equitable Relief ◽  
The Law ◽  
Court Of Appeal

THE decision of the Court of Appeal in AB v CD [2014] EWCA Civ 229; [2014] 3 All E.R. 667 concerned a distinctive feature of equity's auxiliary jurisdiction. Unlike situations in which a claimant invokes equity's exclusive jurisdiction to enforce or protect the claimant's purely equitable rights, a claimant seeking equitable relief in aid of his or her legal rights must show that the relief available at common law, if any, would be inadequate to do justice. Thus, a contract party (for example) must cross a threshold before an injunction or specific performance will be granted. Equity's refusal to intervene where adequate relief is available at law properly makes equitable relief in the auxiliary jurisdiction special. The ordinary operation of the law of contract, and that of the courts, could be unjustifiably disrupted if every threatened or actual breach attracted these forms of discretionary equitable relief. But can a contract party tilt the balance of discretion towards the grant (or the refusal) of such relief by relying on a particular term in the contract?

Contract Growing for the Export-oriented Cut Flowers Industry in Turkey

HortScience ◽  
1998 ◽  
Vol 33 (3) ◽  
pp. 531a-531 ◽  
Author(s):  
Robin G. Brumfield ◽  
Burhan Ozkan ◽  
Osman Karagüzel
Keyword(s):  
Performance Indicators ◽  
Price Setting ◽  
Production Structure ◽  
Cut Flower ◽  
Cut Flowers ◽  
Product Price ◽  
Plant Materials ◽  
Flower Production ◽  
Specific Performance ◽  
Insight Into

Thirty cut flower businesses were surveyed in 1997 to examine the production structure and main problems of export-oriented contract growing in Turkey. The survey was conducted in Antalya province, which is the center of export-oriented cut flower production in Turkey. The results of the research provided insight into how Turkish cut flower-contracted growers were managing some of the key areas of their operations. The study also provided the opportunity for growers to highlight their concerns about contract growing for export-oriented cut flower production. The survey showed that contract growers do not use specific performance indicators relevant to cut flower production. The product price received by the contract growers was determined by the export companies. These export companies receive flowers from growers mainly on consignment. After exporting the products, exporters periodically pay the grower, subtracting a commission for their services and other marketing expenses. Contract growers are essentially price takers in the transactions. The business procedure from production to price setting and marketing was not in the hands of the contract growers. Therefore, the trading risks are essentially borne by the contract growers. The main concerns raised by contract growers were the current consignment system, cost of the plant materials, and the late payment for the sold products.

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