Essay on "Legal Remedies and Damages"

Essay 11 pages (3379 words) Sources: 12 April 28, 2022

[EXCERPT] . . . .

Remedies

Introduction

In noncriminal instances, the primary goal of remedies is to ensure that the non-breaching party doesn’t server by placing them in the same positon they would have been without a breach. Alternatively, the goal is to make the non-breaching party whole. The two types of remedies are equitable and legal remedies. Damages fall within the topic of legal remedies. Damages are sums of money paid by one party to another; they can be of various forms (Treitel, 3-4). These three equitable remedies are specific performance, which means a person is ordered to deliver a one-of-a-kind item (land or a one-of-a-kind personal property, such as a painting or an antique car); injunction, which is a judicial order directing a person to stop doing something they shouldn't be doing (such as competing with a former employer in violation of a non-compete agreement); and restitution, which is putting the parties back to original status.

Legal remedies: Damages

When the other party breaches the contract, the promisee, referred to as the non-breaching party, has the right to damages (a monetary award) is required to make her whole, unless the contract itself or other circumstances suspend or suspend or discharge that right. The legal terms for money paid by the breaching party to the non-breaching aprty is damges. The courts of law were initially only empowered to give monetary relief due to historical and political factors in creating the English legal system. If a petitioner desired something other than money, they had to turn to a distinct equity system. Each courthouse had its proceedings and courtrooms. Although the distinction is no longer acknowledged, a judge may be said to be "sitting in-law" or "sitting in equity," or a case may comprise both monetary and nonmonetary petitions. We'll start with damages as a legal remedy (Treitel, 6-8). Compensatory, incidental, consequential, nominal, liquidated, and (sometimes) punitive damages are the six types (Mai, 273-302).

Compensatory damages

Compensatory damages are those paid to compensate the non-breaching party for the value of what was not done or performed. Because the contract normally binds the non-breaching party, a breach by the other party relieves the non-breaching party of his obligation to perform and may result in cost savings. Alternatively, he may have made alternate arrangements and profited at least in part from the substitution. Alternatively, like in the instance of the builder, he may have acquired materials for the job that can be used elsewhere (Mai, 273-302). The losses he avoided—savings, earnings, or the worth of goods—are removed from the losses sustained to arrive at the net damages in all of these cases. The non-breaching party is only entitled to recoup his genuine damages.

Incidental damages

The non-breaching party may also be entitled to incidental damages and compensatory damages. Incidental loss refers to expenses incurred by the non-breaching party to reduce the loss resulting from the breach. The non-breaching party may have to pay a premium or extra costs to identify another supplier or source of work to obtain alternative products or services.

Consequential damages

Consequential damages are used to compensate for a consequential loss. These are damages sustained by the non-breaching party due to the breach without his involvement. However, one clear and frequently significant cost incurred as a result of a breach—namely, legal fees used in initiating a lawsuit to cure the breach—is not an element of damages unless the contract expressly indicates that it is and cannot be charged to the defendant (Mai, 273-302). However, legal costs can be added to damages in one circumstance: the breach causes the non-breaching party to be involved in litigation with someone else. If the damages are not foreseeable, consequential damages will not be allowed.

Nominal damages

If there is a breach but the non-breaching party cannot prove any loss or has served no loss, nominal damages are the applicable option.

Liquidated damages

In the event of a contract breach, calculatuion of the damages might be difficult, the parties may therefore agree to a certain amount to be paid, which is reffered to as liquidated damages. Courts will uphold a liquidated damages provision if the exact amount of damages is difficult to determine (in which case proof is provided at trial). The agreed amount should be reasonable to the actual harm caused. If the liquidated sum is excessively big, the excess is referred to as a penalty deemed unenforceable and against public policy.

Punitive damages

Punitive damages are those granted to penalize a defendant in a civil case when criminal penalties are unavailable. They are appropriate in circumstances where the defendant has acted deliberately and willfully, intended to prevent others from doing the same. Punitive damages have not generally been given because the goal of contract law is compensation, not punishment, with one exception: when the contract violation is also a tort for which punitive damages may be collected. When the action is malicious or purposeful, punitive damages are allowed under tort law (in all but four states), and some types of contract breaches are also tortious.

Equitable damages

The sole reason for the disparities between law and equity may be found in England's history and politics stretching back to the twelfth century, but the distinctions are noticeable in practice. For starters, in equitable cases, juries are not used. Second, equity is based on the belief that justice should be served rather than precedent. Third, and most importantly, where the non-breaching party seeks something other than money—that is, where there is no acceptable legal remedy—equity may provide relief. In equity, a person can ask a judge to force a breaching party to deliver actual property, cease doing something he shouldn't be doing, or restore the consideration the non-breaching party contributed to bring the parties back to their pre-contract condition (specific performance, injunction, and restitution, respectively). Specific performance, injunction, and restitution are the three types of equitable remedies.

Specific performance

A judicial order to the promisor to perform the performance to which he committed himself in through a acontract is refered to as a specific perfomamnce. This is an alternative to damages which a court can also opt for at its discretion, subject to a few restrictions. Specific performance is a relatively restricted remedy: it is only applicable for a breach where the contract involved a unique item, e.g., a samovar, piece of land, etc. On the other hand, if the item involved cannot be copnsidfred as unique, then a remedy in moneteray terms would do (Mai, 273-302). And particular performance will never be utilized to compel someone to do services against their will, as this is qualified as involuntary slavery. A individual can be made to stop doing something that they should not be doing (injuction), but they cannot be forced to do anything they do not want to.

Injuction

The second form of equitable remedy allowed in a contract is an injuction, which is an order by the court that requires someone to stop doing something that they should not be doing. In case the parson defies an injuctory orders, they are held in contempt of court and imprisoned. An example of a contract injction is Madison Square Garden v. Carnera Corporation.

Restitution

Restitution is the third sort of equitable relief. Restitution is applicable in numerous situations, among them are cases where the contract was inexecutable due to incapacilit or misinterpretation, cases where one of the party’s rights where violated, and cases where the person seeking restitution was breached. Restitution is returning to one party what he contributed in the contract to the benefit of the other. In this case, the injured party may be given reparations equal to the value of the damage caused by the breaching party. The objective is that a party who breaks a contract should not be punished, and the non-breaching party should not be benefited unfairly.

Property damage

The definition and role of the phrase "property damage," which the Comprehensive General Liability Policy (CGLP) drafters specified in both the 1966 and 1973 modifications, are at the heart of the arguments sparked by the sentence "damages because of... property damage" (Gowan, 284). Property damage is defined as "harm to or destruction of tangible property" in the 1966 definition, which is misleadingly easy. After confusion over the scope of coverage for property damage liability arose as a result of the simple language, modification done in 1973 redefined property damage as:

(1) physical injury to or destruction of tangible property during the policy period, including loss of use of such property at any time as a result of such injury or destruction, or (2) loss of use of tangible property that has not been physically injured or destroyed but is caused by an occurrence during the policy period... (Tinker, 295)

Types of property that must be damaged

The standard CGLP forms covered "damage to or destruction of… READ MORE

How to Reference "Legal Remedies and Damages" Essay in a Bibliography

Related Essays:

Legal Remedies the First Issue Term Paper

Legal Remedies

The first issue presented by Jack Jones' legal tangle with Bill Black and Wisa is the fact that, despite having knowledge that Jones had obtained a temporary restraining… read more

Term Paper 5 pages (1779 words) Sources: 1+ Topic: Economics / Finance / Banking

---

Damages the Law Term Paper

Damages

The law of damages is an attempt to establish a standard for measuring any potential monetary award for awarding those meriting compensation for their loss or injuries. There are… read more

Term Paper 9 pages (2998 words) Sources: 0 Topic: Law / Legal / Jurisprudence

---

Legal Briefs Case Briefs Cook's Pest Control Term Paper

Legal Briefs

Case Briefs

Cook's Pest Control, Inc. v. Robert and Margo Rebar

Facts:

Cook's Pest Control and the Rebars entered into a renewable one-year termite control agreement. The agreement… read more

Term Paper 19 pages (5126 words) Sources: 0 Topic: Law / Legal / Jurisprudence

---

Corporate Civil Procedure and Constitutional Law Term Paper

Gilbert Law Summaries: Constitutional Law by Jesse Choper

The United States Constitution is the foremost legal authority for laws created in the United States. Though the Constitution is a federal… read more

Term Paper 32 pages (10293 words) Sources: 1 Topic: Law / Legal / Jurisprudence

---

Punitive Damages and Injunctions Term Paper

punitive damages? In what circumstances are they justified?

Punitive damages are damages awarded not to compensate the plaintiff, but to punish the defendant and are used when "the victim's death… read more

Term Paper 1 pages (407 words) Sources: 1 Style: MLA Topic: Law / Legal / Jurisprudence

---

View 100+ more related papers  >>