Legal remedy
Encyclopedia
A legal remedy is the means with which a court of law, usually in the exercise of civil law
jurisdiction, enforces a right
, imposes a penalty
, or makes some other court order
to impose its will.
In Commonwealth
common law
jurisdictions and related jurisdictions (e.g. the United States
), the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages
) and an equitable remedy
(e.g. injunctive relief or specific performance
). Another type of remedy is declaratory relief
, where a court determines the rights of the parties to an action
without awarding damages or ordering equitable relief.
In English
and American jurisprudence
, there is a legal maxim
that for every right, there is a remedy; where there is no remedy, there is no right. That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim was first enunciated by William Blackstone
: "It is a settled and invariable principle in the laws of England
, that every right when with-held must have a remedy, and every injury it’s [sic] proper redress."
The second category of remedy comes from the Chancellor of England, commonly called the Chancery Court, or, more commonly, equity. The injunction or restraining order is a type of equitable remedy, as is specific performance, in which someone who enters into a contract is forced to perform whatever promise s/he has reneged upon. The equitable lien and constructive trust are two additional equity remedies.
The third broad group of remedies is known as declaratory relief. With this remedial device, the court pronounces its decision about the status of a person or a law, perhaps even the parties' rights in a contract. A divorce or adoption decree is an example of a declaratory judgment. While those three round out the basic remedies in American law, there are also reformation and recission, both dealing with contracts whose terms need to be rewritten or undone.
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
jurisdiction, enforces a right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
, imposes a penalty
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
, or makes some other court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
to impose its will.
In Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions and related jurisdictions (e.g. the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
), the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
) and an equitable remedy
Equitable remedy
Equitable remedies are judicial remedies developed and granted by courts of equity, as opposed to courts of common law. Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable...
(e.g. injunctive relief or specific performance
Specific performance
Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential...
). Another type of remedy is declaratory relief
Declaratory relief
Declaratory relief is a judge's determination of the parties' rights under a contract or a statute, often requested in a lawsuit over a contract. In theory, an early resolution of legal rights will resolve some or all of the other issues in the matter....
, where a court determines the rights of the parties to an action
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
without awarding damages or ordering equitable relief.
In English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and American jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, there is a legal maxim
Legal maxim
A legal maxim is an established principle or proposition. The Latin term, apparently a variant on maxima, is not to be found in Roman law with any meaning exactly analogous to that of a legal maxim in the Medieval or modern sense of the word, but the treatises of many of the Roman jurists on...
that for every right, there is a remedy; where there is no remedy, there is no right. That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim was first enunciated by William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
: "It is a settled and invariable principle in the laws of England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, that every right when with-held must have a remedy, and every injury it’s [sic] proper redress."
Types
There are three crucial remedies in American law. One is from the traditional law courts of England, and is seen in the form of a payment of money to the victim. This payment is commonly referred to as damages. Compensatory damages compensate an injured victim or plaintiff, and punitive damages punish someone who because of fraud or intentional conduct, is deemed to deserve punishment. Punitive damages serve the function in civil law that fines do in criminal law.The second category of remedy comes from the Chancellor of England, commonly called the Chancery Court, or, more commonly, equity. The injunction or restraining order is a type of equitable remedy, as is specific performance, in which someone who enters into a contract is forced to perform whatever promise s/he has reneged upon. The equitable lien and constructive trust are two additional equity remedies.
The third broad group of remedies is known as declaratory relief. With this remedial device, the court pronounces its decision about the status of a person or a law, perhaps even the parties' rights in a contract. A divorce or adoption decree is an example of a declaratory judgment. While those three round out the basic remedies in American law, there are also reformation and recission, both dealing with contracts whose terms need to be rewritten or undone.
Examples of legal remedies
- DamagesDamagesIn law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
, which may include:- Compensatory damages
- Punitive damagesPunitive damagesPunitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
- Incidental damagesIncidental damagesIncidental Damages are a type of legal damages, , that are reasonably associated with or related to actual damages....
- Liquidated damagesLiquidated damagesLiquidated damages are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach ....
- Nominal damages
- Coercive relief
- Specific performanceSpecific performanceSpecific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential...
- InjunctionInjunctionAn injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s - RestitutionRestitutionThe law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court...
- Account of profitsAccount of profitsAn account of profits is a type of equitable remedy most commonly used in cases of breach of fiduciary duty...
- Specific performance
Categories of remedies
- Adequate remedyAdequate remedyAn adequate remedy or adequate remedy at law is a legal remedy which the court deems satisfactory, without recourse to an equitable remedy....
- Civil remedy
- Cumulative remedy
- Election of remediesElection of remediesIn the law of civil procedure, election of remedies is the situation in which a winning party in a lawsuit must choose the means by which its injury will be remedied. For example, if a court finds that the plaintiff's painting was stolen by the defendant, then the plaintiff has two possible routes...
- Equity
- Equitable remedyEquitable remedyEquitable remedies are judicial remedies developed and granted by courts of equity, as opposed to courts of common law. Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable...
- Extraordinary remedy
- Joinder of remedies
- Provisional remedyProvisional remedyThe purpose of a provisional remedy is the preservation of the status quo until final disposition of a matter can occur.Under United States law, FRCP 64 provides with several types of seizure that a Federal Court may use pursuant to state law...
- Remedy over