Remedies Reclassified

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ISBN: 9780199278756 | 019927875X
Cover: Hardcover
Copyright: 6/23/2005

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Remedies Reclassified is a book about the law of remedies. It focuses on court orders and shows how each kind of court order gives effect to legal rights in a civil case. It establishes the boundaries of this area of law, providing a new way to view remedies and substantive rights. For the first time, remedies are established as a stable and distinct area of law.

Table of Cases

xix

Table of Legislation

xxix

1. Introduction

(6)

2. Instability of 'Remedy'

(16)

A Introduction

(1)

B Literal and Non-Legal Meanings of Remedy

(1)

C Broad Functional Definition of Legal Remedy

(2)

D Narrow Meanings of Legal Remedy

(11)

1 An action or cause of action as a remedy

(2)

2 A substantive right as a remedy

(4)

(a) Kinds of substantive rights: primary and secondary

(2)

(b) Confusion as to secondary rights

(1)

(d) A primary right as a remedy

(1)

3 A court order as a remedy

(1)

(a) An order made 'as of right'

(1)

(b) An order given in court's 'strong' discretion

(1)

4 Means of enforcing a court order as a remedy

(3)

5 Final outcome as a remedy

(1)

E Conclusion

(1)

3. Writers on 'Remedies'

(20)

A Introduction

(1)

B Lawson - Remedies of English Law

(6)

1 The work

(1)

2 Scope of the concept of a remedy

(1)

3 Taxonomy of remedies

(3)

4 Summary

(1)

C Burrows - Remedies for Torts and Breaches of Contract

(2)

1 The work

(1)

2 Scope of the concept of a remedy

(1)

3 Taxonomy of remedies

(1)

4 Summary

(1)

D Meagher, Gummow and Lehane-Equity: Doctrines and Remedies

(2)

1 The work

(1)

2 Scope of the concept of a remedy

(2)

3 Taxonomy of remedies

(1)

4 Summary

(1)

E Tilbury- Civil Remedies

(4)

1 The work

(1)

2 Scope of the concept of a remedy

(2)

3 Taxonomy of remedies

(2)

4 Summary

(1)

F Walker-The Law of Civil Remedies in Scotland

(4)

1 The work

(1)

2 Scope of the concept of a remedy

(1)

3 Taxonomy of remedies

(2)

4 Summary

(1)

G Conclusion

(2)

4. Stable Core Meaning of 'Remedy'

(20)

A Introduction

(1)

B Stable Core Meaning of Remedy

(4)

1 Core usage of remedy

(1)

2 The nature of a court order or pronouncement

(2)

3 A note on self-help 'remedies'

(1)

C Rejection of Various Definitions

(5)

1 Broad definition of remedy not adequate

(1)

2 Rejected narrow meanings of 'remedy'

(4)

(a) An action or cause of action ought not to be called a remedy

(1)

(b) A secondary right ought not to be called a remedy

(2)

(1)

(d) Means of enforcement of a court order ought not to be called a remedy

(1)

(e) Final outcome ought not to be called a remedy

(1)

D Relationship Between Substantive Rights and Remedies

(8)

1 Line between substance and remedy

(1)

2 Fitting substantive rights, remedies, and enforcement together

(2)

3 Existence of substantive rights

(1)

4 Substantive rights before remedies or vice versa?

(2)

5 Remedies without substantive rights

(1)

6 Substantive rights without remedies

(2)

E Conclusion

(2)

5. Classification of Remedies

(22)

A Introduction

(1)

B Classifications of Remedies

(1)

1 Most common classifications

(1)

2 Received classification

(1)

C What is Being Classified?

(2)

1 Effect of imprecise definition on taxonomy

(1)

2 Definition of 'remedy'

(1)

3 Foreign matter must be excluded

(1)

D What Criterion Operates?

(8)

1 What is the criterion for the categories of compensation, restitution, and punishment?

(2)

2 Are specific enforcement, coercion, and declaration goal-based categories?

(1)

3 What are the criteria for the specific enforcement category?

(2)

4 What is the criterion for the coercion category?

(2)

5 What is the criterion for the declaration category?

(1)

6 Criteria must not be mixed

(1)

E What Could a Disciplined Classification of Remedies Look Like?

(7)

1 First principles of taxonomy

(1)

2 Features of remedies and possible criteria

(1)

3 The summa divisio or first level

(4)

4 Lower levels of the hierarchy

(1)

F Conclusion

(2)

G Appendix

(1)

6. Discretion and Remedies

(18)

A Introduction

(1)

B A Closer Look at Discretion

(2)

1 Definition of discretion

(1)

2 Discretion and rules

(1)

3 Constraints on discretion

(1)

4 Reasons for discretion

(1)

C Discretion as to Replicative Remedies

(9)

1 Introduction

(1)

2 Discretion as to common law remedies

(2)

3 Discretion as to equitable remedies

(6)

(a) Characterized as discretion to grant or refuse the remedy

(1)

(b) Characterized as discretion as to whether a 'bar' to the remedy operates

(2)

(d) 'Discretion' to impose conditions

(1)

D Remedial Discretion as to Transformative Remedies

(5)

1 Introduction

(1)

2 Remedial discretion distinguished from discretion as to equitable replicative remedies

(2)

3 Remedial discretion distinguished from judicial development of the law

(5)

(a) Law-making at the institutional level (or 'rule-making')

100

(1)

(b) 'Law'-making at the instance-specific level (or 'remedy-making')

100

(2)

E Conclusion

102

(1)

7. Replicating Primary Rights: Common Law Remedies

103

(18)

A Introduction

103

(1)

B Replication of Primary Rights

104

(1)

1 Primary rights capable of replication

104

(1)

2 Primary rights not capable of replication

104

(1)

3 Primary rights not replicated for policy reasons (bars)

105

(1)

C Replication at Common Law and in Equity

105

(1)

D Award of Sum Due Under a Contract

106

(6)

1 Form of the order

106

(2)

2 Nature of the remedy

108

(1)

(a) Function of the remedy

108

(1)

(b) Effect on substantive rights

108

(1)

109

(1)

3 Nature of the substantive right replicated

109

(3)

(a) Right to the payment of an agreed sum

110

(1)

(b) Right to the payment of an unspecified sum

111

(1)

4 Enforcement of the remedy

112

(1)

E Award of Restitution for Unjust Enrichment at the Expense of Another

112

(3)

1 Form of the order

113

(1)

2 Nature of the remedy

113

(1)

3 Nature of the substantive right replicated

114

(1)

4 Enforcement of the remedy

114

(1)

F Order for the Recovery of Land

115

(6)

1 Form of the order

115

(1)

2 Nature of the remedy

116

(1)

3 Nature of the substantive right replicated

117

(2)

(a) The claimant's substantive right

117

(1)

(b) The nature of the right's replication

118

(1)

4 Enforcement of the remedy

119

(2)

8. Replicating Primary Rights: Equitable Remedies

121

(32)

A Introduction

121

(1)

B Injunction Replicating a Primary Right

121

(13)

1 Form of the order

122

(2)

2 Nature of the remedy

124

(3)

(a) Duration of operation

124

(1)

(b) Function of the remedy

124

(1)

125

(1)

(d) Effect on substantive rights

126

(1)

3 Nature of the substantive right replicated

127

(6)

(a) Negative primary right (prohibitory injunction)

128

(1)

(i) Common law rights

128

(1)

(a) Replication of negative contractual rights

128

(1)

(b) Replication of negative non-contractual legal rights

129

(1)

(ii) Equitable rights

129

(1)

(iii) Statutory rights

129

(1)

(b) Positive primary non-contractual right (mandatory injunction)

130

(1)

(i) Common law rights

130

(1)

(ii) Equitable rights

130

(1)

(iii) Statutory rights

133

(1)

4 Enforcement of the remedy

133

(1)

C Decree of Specific Performance of a Contract

134

(8)

1 Form of the order

134

(1)

2 Nature of the remedy

135

(3)

(a) Function of the remedy

135

(2)

(b) Advantages of the remedy

137

(1)

137

(1)

3 Nature of the substantive right replicated

138

(4)

(a) Right to the transfer of an asset

139

(1)

(b) Right to the provision of a service

139

(2)

141

(1)

(d) Two senses of 'specific performance'

141

(1)

4 Enforcement of the remedy

142

(1)

D Order for the Execution of a Trust and Order for a Common Account

142

(4)

1 Form of the order

143

(1)

(a) Order for execution of a trust

143

(1)

(b) Order for a common account

143

(1)

2 Nature of the remedy

144

(1)

(a) Function of the remedy

144

(1)

(b) Advantages of the remedy

144

(1)

145

(1)

3 Nature of the substantive right replicated

145

(1)

4 Enforcement of the remedy

146

(1)

E Rectification 'Order'

146

(2)

1 Form of the order

147

(1)

2 Nature of the remedy

147

(1)

(a) Function of the remedy

147

(1)

(b) Effect on substantive rights

147

(1)

3 Nature of the substantive right replicated

148

(1)

4 Enforcement

148

(1)

F 'Order' for Rescission

148

(5)

1 Form of the order

148

(1)

2 Nature of the remedy

149

(1)

3 Nature of the substantive right replicated

150

(1)

4 Enforcement

151

(2)

9. Replicating Primary Rights: Statutory Remedies

153

(12)

A Introduction

153

(1)

B Order for the Recovery of Goods (or their Value)

153

(5)

1 Form of the order

154

(1)

2 Nature of the remedy

155

(1)

(a) Function of the remedy

155

(1)

(b) Advantages of the remedy

155

(1)

155

(1)

3 Nature of the substantive right replicated

155

(2)

4 Enforcement of the remedy

157

(1)

C Declaration of Primary Right

158

(7)

1 Form of the judgment

158

(1)

2 Nature of the remedy

159

(1)

(a) Function of the remedy

159

(1)

(b) Advantages of the remedy

159

(1)

160

(1)

3 Nature of the substantive right replicated

160

(4)

(a) Common law rights

162

(1)

(i) Contractual rights

162

(1)

(ii) Property rights usually protected by the law of tort

163

(1)

(b) Equitable rights

163

(1)

163

(1)

4 Enforcement of the remedy

164

(1)

10. Replicating Secondary Rights: Common Law Remedies

165

(14)

A Introduction

165

(1)

B Replication of Secondary Rights

166

(1)

C Award of Damages

167

(12)

1 Form of the order

167

(1)

2 Nature of the remedy

168

(2)

(a) Function of the remedy

168

(1)

(b) Effect on substantive rights

169

(1)

170

(1)

3 Nature of the substantive right replicated

170

(7)

(a) Compensation

172

(1)

(i) Arising from a breach of contract

172

(1)

(a) Loss of expected enrichment

173

(1)

(b) Loss of bargain

173

(1)

174

(1)

(ii) Arising from a tort

174

(1)

(b) Restitution

175

(1)

(i) Arising from a breach of contract

175

(1)

(ii) Arising from a tort

176

(1)

176

(1)

(i) Arising from a tort

177

(1)

(ii) Arising from a breach of contract

177

(1)

4 Enforcement of the remedy

177

(2)

11. Replicating Secondary Rights: Equitable Remedies

179

(18)

A Introduction

179

(1)

B Award of Equitable Compensation

179

(4)

1 Form of the order

180

(1)

2 Nature of the remedy

180

(1)

3 Nature of the substantive right replicated

181

(2)

(a) Beneficiary's secondary right to direct payment

181

(1)

(b) Beneficiary's secondary right to have the trust fund restored

182

(1)

4 Enforcement of the remedy

183

(1)

C Orders Giving Effect to Secondary Rights to an Account

183

(6)

1 Order for an account on the basis of willful default

183

(2)

(a) Form of the order

183

(1)

(b) Nature of the remedy

183

(1)

184

(1)

(d) Consequential remedy (equitable compensation)

184

(1)

2 Order for an account of profits

185

(4)

(a) Form of the order

185

(1)

(b) Nature of the remedy

186

(1)

186

(1)

(i) Arising from an equitable wrong

186

(1)

(ii) Arising from a breach of contract

187

(1)

(d) Consequential remedy (equitable restitution)

188

(1)

3 Enforcement of the remedies

189

(1)

D Mandatory Injunction to Undo or Prevent a Wrong

189

(8)

1 Form of the order

189

(1)

2 Nature of the remedy

190

(1)

3 Nature of the substantive right replicated

191

(5)

(a) Arising from a breach of contract

194

(1)

(b) Arising from a tort

195

(1)

195

(1)

(d) Arising from an infringement of an intellectual property right

195

(1)

4 Enforcement of the remedy

196

(1)

12. Replicating Secondary Rights: Statutory Remedies

197

(6)

A Introduction

197

(1)

B Order for the Recovery of the Value of Goods (or the Goods Themselves)

197

(2)

1 Form of the order

197

(1)

2 Nature of the remedy

198

(1)

3 Nature of the substantive right replicated

198

(1)

4 Enforcement of the remedy

198

(1)

C Award of Damages 'in Addition to' Specific Relief under Section 50 of the Supreme Court Act

199

(2)

1 Form of the order

199

(1)

2 Nature of the remedy

199

(1)

3 Nature of the substantive right replicated

200

(1)

4 Enforcement of the remedy

201

(1)

D Declaration of a Secondary Right

201

(2)

1 Form of the order

201

(1)

2 Nature of the remedy

201

(1)

3 Nature of the substantive right replicated

201

(1)

(a) Arising from a breach of contract

201

(1)

(b) Arising from an equitable wrong

201

(1)

4 Enforcement of the remedy

202

(1)

13. Transformative Remedies

203

(16)

A Introduction

203

(4)

1 Distinction between constitutive and immediately enforceable remedies

204

(1)

2 Example of statutory power to grant transformative remedies

205

(1)

3 Discretion and transformative remedies

206

(1)

B Statutory Transformative Remedies

207

(7)

1 Constitutive remedies

207

(3)

(a) Jurisdiction to grant the remedy

207

(1)

(b) Form of the 'order'

208

(2)

2 Enforceable transformative remedies

210

(4)

(a) Jurisdiction to grant the remedy

210

(3)

(b) Form of the order

213

(1)

C Equitable Transformative Remedies

214

(3)

1 Constitutive remedies

214

(2)

(a) Jurisdiction to grant the remedy

214

(2)

(b) Form of the order

216

(1)

2 Enforceable transformative remedies

216

(1)

D Common Law Transformative Remedies

217

(1)

E Enforcement of Transformative Remedies

217

(2)

1 Constitutive remedies

217

(1)

2 Enforceable transformative remedies

217

(2)

14. Conclusion

219

(6)

Bibliography

225

(6)

Index

231

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Remedies Reclassified

Summary

Author Biography

Table of Contents

Supplemental Materials