Common Law

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1 Remedies for Breach

• Common law and equity

• Damages (CL)

• Action for price (CL)

• Quantum meruit (CL) Hoenig v Isaacs, Planche v Colborn, De Bernardy v Harding

• Specific performance (E)

• Injunction (E)

• Rescission (E)

• Rectification (E)

• Mareva injunction (E)

• Penalty clauses — under the 'Cavendish' and, separately, the 'ParkingEye' cases, a secondary obligation is penal if it imposes a detriment out of all proportion to the innocent party’s legitimate interest. In neither of those cases was the discussed contractual provision a penalty. (Dunlop v New Garage is useful guidance)

2 Remedies – Sundry Points

• Equitable remedies are discretionary

• Cannot be claimed as of right

• Equitable orders characteristically act in personam against the defendant (Warner Bros v Nelson)

• Delay defeats equity (Doctrine of Laches)

• Rescission sets aside a contract for a vitiating factor and may be barred by affirmation; termination for repudiatory breach instead ends future obligations

• Rescission will not be awarded if it is not possible to restore the parties to their original pre-contractual position

• Equitable remedies will not be awarded if the injured party has not acted fairly (clean hands)

• Equitable remedies will not be awarded if some innocent third party would be adversely affected

• Limitation Act – 6 years (specialty contracts – 12 years)

• Normally six years from accrual of the cause of action; discovery-based extensions apply only in defined circumstances