REMEDIES IN THE COMMON LAW
Stephen A Smith
McGill University
1
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’.
2
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.
3
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.
4
5
Breach
(Defective Crane)
6
Major Breach
(Repudiatory)
Breach
(Defective
Crane)
Minor
Breach
7
Major Breach
(Repudiatory)
Breach
(Defective
Crane)
Minor
Breach
8
Damages
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.
9
Major Breach
(Repudiatory)
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
10
Damages
Damages
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.
11
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
12
Damages
Damages
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
13
Damages
Damages
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
14
Damages
Damages
Damages
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
15
Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
16
Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
17
Damages
Lessor
Performs Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Lessor
Fails to
Perform
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
18
Damages
Lessor
Performs Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Lessor
Fails to
Perform
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
19
Damages
Lessor
Performs Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Damages
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
20
Damages
Lessor
Fails to
Perform
Lessee
Requests
Specific
Performance
Lessor
Performs Damages
Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
21
Damages
Lessor
Fails to
Perform
Lessee
Requests
Specific
Performance
Lessor
Performs Damages
Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Specific
Performance
Granted;
Damages May
be Awarded in
Addition
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’ the
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
22
Damages
Lessor
Fails to
Perform
Lessee
Requests
Specific
Performance
Lessor
Performs Damages
Damages
Restitution
(Lessee
Gets His
Money
Back)
Damages
Damages
Specific
Performance
Granted;
Damages May
be Awarded in
Addition
Specific
Performance
Refused;
Damages May
be Awarded in
Lieu
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
23
Damages
Lessor
Fails to
Perform
Lessee
Requests
Specific
Performance
Lessor
Performs Damages
Damages
Restitution
(Lessee
Gets
Money
Back)
Damages
Damages
Specific
Performance
Granted;
Damages May
be Awarded in
Addition
Specific
Performance
Refused;
Damages May
be Awarded in
Lieu
Damages
24
Ordinary or
‘Compensatory’ Damages
Damages
25
Cost of Performance
Ordinary or
‘Compensatory’ Damages
Damages
26
Cost of Performance
Ordinary or
‘Compensatory’ Damages
Damages
27
Consequential Loss
(e.g., lost profits, out of
pocket expenses, mental
distress, property
damage)
Cost of Performance
Ordinary or
‘Compensatory’ Damages
Nominal Damages
Damages
28
Consequential Loss
(e.g., lost profits, out of
pocket expenses, mental
distress, property
damage)
Cost of Performance
Ordinary or
‘Compensatory’ Damages
Nominal Damages
Damages
Punitive Damages
(Available in addition to
any other award)
29
Consequential Loss
(e.g., lost profits, out of
pocket expenses, mental
distress, property
damage)
Cost of Performance
Ordinary or
‘Compensatory’ Damages
Nominal Damages
(Common Law Only)
Consequential Loss
(e.g., lost profits, out of
pocket expenses, mental
distress, property
damage)
Damages
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)
30
31
32
-Compensatory
-Nominal
-Punitive
-Restitutionary
The Law of Remedies: Good for Lawyers
PLUS: possibility of...
-Claim in tort (eg, for
misrepresentation)
- Claim for breach of
fiduciary or other
equitable duty
- Claim under human
rights legislation
Lessee Keeps
Contract Alive
(Insists on
Performance)
Lessee
Rejects
Crane
Major Breach
(Repudiatory)
Lessee
‘Ends’
Contract
Breach
(Defective
Crane)
Lessee
Accepts
Crane
Minor
Breach
33
Damages
-Compensatory
-Nominal
-Punitive
-Restitutionary
Lessor
Fails to
Perform
Lessee
Requests
Specific
Performance
Lessor
Performs Damages
Damages
Restitution
(Lessee
Gets
Money
Back)
-Compensatory
-Nominal
-Punitive
-Restitutionary
Damages
Damages
-Compensatory
-Nominal
-Punitive
-Restitutionary
-Compensatory
-Nominal
-Punitive
-Restitutionary
Specific
Performance
Granted;
Damages May
be Awarded in
Addition
Specific
Performance
Refused;
Damages May
be Awarded in
Lieu
-Compensatory
-Nominal
-Punitive
-Restitutionary
-Compensatory
-Nominal
-Punitive
-Restitutionary