REMEDIES IN THE COMMON LAW Stephen A Smith McGill University 1

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REMEDIES IN THE COMMON LAW

Stephen A Smith

McGill University

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Definition

A court order or judgment (hereafter ‘order’)

- e.g., an order to perform a contract: ‘THIS COURT orders that the agreement dated Jan 1, 2009 referred to in the Particulars of Claim be specifically performed and carried into execution’.

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Art. 1458 CCQ

Toute personne a le devoir de respecter les règles de

conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à elle, de manière à ne pas causer de préjudice à autrui.

Elle est, lorsqu'elle est douée de raison et qu'elle manque à ce devoir, responsable du préjudice qu'elle cause par cette faute à autrui et tenue de réparer ce préjudice, qu'il soit corporel, moral ou matériel.

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Art. 1458 CCQ

Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

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Breach

(Defective Crane)

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Breach

(Defective Crane)

Major Breach

(Repudiatory)

Minor Breach

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Breach

(Defective Crane)

Major Breach

(Repudiatory)

Minor Breach

Damages

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Art. 1604 CCQ

Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance.

However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation.

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Breach

(Defective Crane)

Major Breach

(Repudiatory)

Lessee Accepts Crane

Damages

Minor Breach Damages

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Art. 1604 CCQ

Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance.

However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation.

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Breach

(Defective Crane)

Major Breach

(Repudiatory)

Lessee Rejects Crane


Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)


Lessee ‘Ends’ the Contract


Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)



DamagesLessee Accepts Crane

Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)



Restitution (Lessee Gets His Money Back)


Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)


Lessee Keeps Contract Alive

(Insists on Performance)




Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)




Lessor Performs - Damages




Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)




Lessor Fails to Perform

Lessor Performs - Damages




Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)





DamagesLessor Performs - Damages




Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)





Lessee Requests Specific

Performance





Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)






Performance

Specific Performance

Granted; Damages May be Awarded in

Addition





Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)






Performance



Addition


Refused; Damages May be Awarded in

Lieu





Damages


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Breach

(Defective Crane)

Major Breach

(Repudiatory)






Performance



Addition



Lieu


Lessee ‘Ends’

Contract

Restitution (Lessee

Gets Money Back)


Damages


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Damages

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Damages

Ordinary or ‘Compensatory’ Damages

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Damages


Cost of Performance

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Damages


Cost of Performance

Consequential Loss

(e.g., lost profits, out of pocket expenses, mental distress, property damage)

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Damages


Cost of Performance

Consequential Loss


Nominal Damages

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Damages


Cost of Performance

Consequential Loss


Nominal Damages

Punitive Damages

(Available in addition to any other award)

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Damages


Cost of Performance

Consequential Loss


Nominal Damages

(Common Law Only)

Punitive Damages

(Available in addition to any other award)

‘Restitutionary’ Damages or ‘Disgorgement’

‘Doing the very thing she contracted not to do’

‘Skimped Performance’

AG v Blake

(2001)(H of L)

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Breach

(Defective Crane)

Major Breach

(Repudiatory)






Performance



Addition



Lieu

DamagesLessor

Performs - Damages

Lessee ‘Ends’

Contract

Restitution (Lessee

Gets Money Back)


Damages


PLUS: possibility of...-Claim in tort (eg, for misrepresentation)- Claim for breach of fiduciary or other equitable duty- Claim under human rights legislation

-Compensatory-Nominal-Punitive -Restitutionary

The Law of Remedies: Good for Lawyers







Documents

REMEDIES IN THE COMMON LAW Stephen A Smith McGill University 1