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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
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