Remedies for breach of contract are either common law or equitable. Whereas a common law remedies are enforced as of right, i.e. the plaintiff is entitled to the remedy if a breach of contract or loss are proved, equitable remedies are discretional i.e. the remedy is generally not available. Its availment depends on the court. The court exercises discretion in determining whether or not to grant the remedy.
The court’s discretion is however, not exercises capriciously, it is exercised on the basis of established principles of equity for example:
- Doctrine of laches
- Hardship of the defendant
- Balance of convenience
- Clean hands
- Doctrine of mutuality
Common law remedies
Damages: This is a monetary award by the court intended to compensate the plaintiff for the loss suffered. The plaintiff must prove the loss suffered and the amount awarded may be substantial or nominal. If the plaintiff’s loss cannot be traced to the breach, it is said to be too remote and is irrecoverable as was the case in Hadley V. Baxendale.
Equitable remedies
Specific performance: This is a court order which compels a party to perform its part of the contract. It orders the defendant to honour his contractual obligation as previously agreed. It manifests the equitable maxim that equity acts in Personam.
Injunction: This is a court order which either restrains a party from doing or continuing to do a particular thing or compels a party to put right what it has wrongly done. It is either prohibitory or mandary and is generally awarded in circumstances in which money cannot adequately compensate the person.
Tracing: this is a court order which enables a party to follow and recover money or goods which change hands in certain circumstances for example under a void contract.
Rescission: This is an equitable remedy who essence is to restore the parties to the position they were before the contract.
Appointment of receiver: This is a remedy available to debenture holders. The receiver may be appointed by the court on application or by the debenture holder in accordance with the terms of the debenture. The receiver protects and manages the security for the benefit of the debenture holder.
Winding up: This is the legal process by which a company’s existence is brought to an end, it assets collected in realized, liabilities ascertained and made good and the balance if any, distributed among the members.
