Common Law distinguishes between two types of remedies - damages and specific performance. IQ Decision team provides consulting services to determine which remedy is best for you.
Damages in the English legal system is a means of judicial protection of a financial nature, recovered for breach of obligations under the English contract.
The main purpose of damages is to compensate the injured party for the consequences of improper termination of the contract. As a general rule, the award of damages in the common law system is intended to restore the situation in which the injured party could find himself in the absence of the wrongful termination of a contract drawn up under the common law.
The award of monetary compensation under English law is intended to compensate for damages under the law of England, is exclusively restorative in nature and is not a penalty.
Meanwhile, in deciding on the award of damages, the English court must take into account the following factors:
- Proven existence of a causal link between the termination of the contract and the violation of the rights of the party to whom compensation will be awarded;
- The court will consider the so-called “distance” between the breach of obligations and the damage caused;
- The injured party must take steps to reduce losses.
Existence of a causal connection
The plaintiff may claim damages under common law only in the case where the breach of contract resulted in losses. The existence of circumstances of breach of contractual obligations and the occurrence of damage can not exist independently of each other.
Calculation of damages
In English law, the question of the order of calculation of damages is more important than the question of the original coercion of such (since the award depends on the factors discussed above).
There are two ways to calculate monetary compensation in the common law system: the first method creates a situation for the injured party in which it would find itself if the contract were performed. The second method of calculation is that a situation is created in which the injured party found himself if the contract had not been concluded at all. The first method of calculating damages has become more widespread in English law. This method is sometimes called "implied losses".
Compensation for non-pecuniary damage in the Common Law
Previously, it was thought that damages could only be awarded if the injured party suffered financial losses. However, the law of England provides for the award of damages in cases of non-pecuniary damage to the injured party.
Specific performance
The common law system provides for another type of judicial protection - specific performance. This type of judicial protection is quite specific, as it exists exclusively in the law of England.
Specific performance obliges the party who has violated the contractual obligations to fulfill the obligations under the contract or, conversely, to refrain from performance. Specific performance can only be awarded in a case where damages is an insufficient remedy. Since enforcement in kind is a remedy for the right to justice, it can only be awarded in accordance with such a right.
The analysis of court decisions considered within the framework of common law allows us to identify a number of principles that govern the award of specific performance by courts:
- A plaintiff who has missed the time to file a claim may not claim the award of such a remedy as specific performance;
- Specific performance cannot be awarded to a plaintiff who has behaved in bad faith or incorrectly;
- In English law, the defendant may prevent damages from being awarded in kind if such a remedy presents serious difficulties to him;
- Specific performance may not be awarded if any property no longer belongs to the defendant;
- The plaintiff will not be awarded the specific performance provided by the Common Law if he has not been granted reciprocal satisfaction;
- Specific performance is awarded only in cases where the plaintiff also intends to execute his part of the transaction;
- Specific performance will not be provided in cases where a contract concluded under the English law provides for the performance of obligations after a certain amount of time, as in this case it is necessary to constantly monitor the process of performance of contractual obligations, which, in the opinion of the court, is not practical.
Remedies are one of the most complex and ambiguous in the common law system. IQ Decision solicitors will advise on the most appropriate remedy in your specific case and help you resolve a dispute under English law. Do not hesitate to sign up for an individual consultation by filling out the form below or by contacting us in any other convenient way.
