Breach of contract entitles the innocent party to a remedy
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
forthe 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
ofthe 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
todo 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
goodswhich 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.
raphael answered the question on April 18, 2018 at 12:16
- Many contractual clauses in a contract purport to exclude liability for injury, loss or damage. Explain the general rules which will determine the effectiveness of...(Solved)
Many contractual clauses in a contract purport to exclude liability for injury, loss or damage. Explain the general rules which will determine the effectiveness of such clauses.
Date posted: April 18, 2018. Answers (1)
- Sauti Cleaners Ltd. offered to clean two garments for the price of one. A notice was
displayed in the shop to this effect but with the...(Solved)
Sauti Cleaners Ltd. offered to clean two garments for the price of one. A notice was
displayed in the shop to this effect but with the addition in smaller print of a statement
that he customer must agree in return to accept full responsibility if anything should
happen to the garments.
A similar statement was printed on the back of the tickets which were handed to
customers when they disposed the garments. Nabayi bought two garments fro cleaning.
Because of poor eye sight. She was unable to read the small print on the notice and she
put the ticket in her pocket without reading.
Some days later when Nabayi went to collect the garments, she saw that one garment
had been badly torn. After wearing the other garment, she contracted a skin disease
caused by a chemical which the cleaners had used.
Advise Nabayi.
Date posted: April 18, 2018. Answers (1)
- A partner has a right to seek for the dissolution of a partnership. Explain the circumstances under which the court will generally order the dissolution...(Solved)
A partner has a right to seek for the dissolution of a partnership. Explain the circumstances under which the court will generally order the dissolution of a partnership.
Date posted: April 18, 2018. Answers (1)
- A partnership is basically a matter of agreement between the parties or partners in the
business. Section 24 of the Partnership Act sets out rules which...(Solved)
A partnership is basically a matter of agreement between the parties or partners in the
business. Section 24 of the Partnership Act sets out rules which apply in the absence of
express o implied agreement to the contrary. Outline five of these rules.
Date posted: April 18, 2018. Answers (1)
- Explain the conditions that have to be satisfied by an applicant before an adoption
order can be granted by the court.(Solved)
Explain the conditions that have to be satisfied by an applicant before an adoption
order can be granted by the court.
Date posted: April 17, 2018. Answers (1)
- Explain three characteristics of a public company(Solved)
Explain three characteristics of a public company.
Date posted: April 17, 2018. Answers (1)
- Custom is the oldest source of law. Explain the criteria which must be satisfied before a custom can be applicable as law.(Solved)
Custom is the oldest source of law. Explain the criteria which must be satisfied before a custom can be applicable as law.
Date posted: April 17, 2018. Answers (1)
- Explain five advantages of arbitration as a form of settling disputes.(Solved)
Explain five advantages of arbitration as a form of settling disputes.
Date posted: April 17, 2018. Answers (1)
- Explain the key distinctions between common law and equity(Solved)
Explain the key distinctions between common law and equity.
Date posted: April 17, 2018. Answers (1)
- Mwangi has stolen some goods from Simiyu. The police prosecute Mwangi for theft
and Simiyu sues him for the return of the goods. (i) Explain under...(Solved)
Mwangi has stolen some goods from Simiyu. The police prosecute Mwangi for theft
and Simiyu sues him for the return of the goods. (i) Explain under what law the action by the police will be based. (ii) In this action by the police, state what Mwangi will be called. (iii) Under what law would the action brought by Simiyu be and what would Simiyu be called?
Date posted: April 17, 2018. Answers (1)
- Explain the difference between codification and consolidation of law and give examples of each.(Solved)
Explain the difference between codification and consolidation of law and give examples of each.
Date posted: April 17, 2018. Answers (1)
- Mr. Karanja signed blank cheques and left them with his wife to draw cash while he was away attending to business affairs. Mrs Karanja instructed...(Solved)
Mr. Karanja signed blank cheques and left them with his wife to draw cash while he was away attending to business affairs. Mrs Karanja instructed Hatari, a clerk in the firm of Karanja and Karanja Associates to fill in the cheques. Hatari filled in the amount leaving a gap after the words “Sh.” and wrote the amount in words from the middle of the line without using a capital letter. Hatari showed the cheques to Mrs Karanja written “Sh.50,000” and ………. fifty thousand only.” He was authorized to encash the cheque.
However before presenting the cheque for payment Hatari added figure “3” to the amount in figures and “three hundred” in the words. He encashed the chequed for Sh. 350,000. He then gave Mrs. Karanja Sh. 50,000 only. These facts have come to light after Hatari's resignation and Mr. Karanja intends to sue his bankers.
Advise the bank.
Date posted: April 17, 2018. Answers (1)
- Briefly state the various kinds of crossing on a cheque.(Solved)
Briefly state the various kinds of crossing on a cheque.
Date posted: April 17, 2018. Answers (1)
- “A contract of insurance is a contract of “Uberrimae fidei (utmost good faith)”. Explain this statement.(Solved)
“A contract of insurance is a contract of “Uberrimae fidei (utmost good faith)”. Explain
this statement.
Date posted: April 17, 2018. Answers (1)
- What liability is imposed on the seller of goods as regards their merchantable quality and
their fitness for the purpose of those goods?(Solved)
What liability is imposed on the seller of goods as regards their merchantable quality and
their fitness for the purpose of those goods?
Date posted: April 17, 2018. Answers (1)
- In relation to the Law of Succession, what are the duties of a personal representative?(Solved)
In relation to the Law of Succession, what are the duties of a personal representative?
Date posted: April 17, 2018. Answers (1)
- Due to Desmond's carelessness in allowing excessive electric current to develop in his generator, the electricity supply to the locality cut after a few hours....(Solved)
Due to Desmond's carelessness in allowing excessive electric current to develop in his generator, the electricity supply to the locality cut after a few hours. As a result, Derrick's factory was at a standstill during this period and he lost Sh. 50,000 by way of profits from lost production.
Advise Derrick in regard to his rights, if any, against Desmond.
Date posted: April 17, 2018. Answers (1)
- “An occupier of premises owes a duty of care towards persons who are lawfully on his premises. The Occupiers Liability Act does not affect the...(Solved)
“An occupier of premises owes a duty of care towards persons who are lawfully on his premises. The Occupiers Liability Act does not affect the position of trespassers.”
In relation to the above statement, what is the extent of potential liability of an occupier and to what extent can such an occupier safeguard such liability.
Date posted: April 17, 2018. Answers (1)
- Mrs. Hamilton borrowed Sh. 5 million from White Bank and offered her house at White Highlands Estate as a security. She has been unable to...(Solved)
Mrs. Hamilton borrowed Sh. 5 million from White Bank and offered her house at White Highlands Estate as a security. She has been unable to service the loan and is in arrears. The bank intends to realize the security and seeks your legal advice on what options they can take to realize the security.
Advise White bank.
Date posted: April 17, 2018. Answers (1)
- In relation to the Law of Property, state five obligations of a lessor towards a lessee in a
lease agreement.(Solved)
In relation to the Law of Property, state five obligations of a lessor towards a lessee in a
lease agreement.
Date posted: April 17, 2018. Answers (1)