EQUITABLE REMEDIES

   Equitable remedies

Equitable remedies are available at the discretion of the court. They include;

•   Specific performance
•  Injunction
•  Rescission

Equitable remedies are not granted if;

                        -          Damages are an adequate remedy

                        -          Defendant has acted unfairly

                        -          The order would cause undue hardship

                        -          There is undue delay in seeking the remedy

             a)      Specific performance

This is an order of the court directing a person to perform his obligation under the contract e.g. delivering the contract goods. Its principle use is in contracts for the sale of land but may also be used to compel a sale of shares or debenture. It will never be used in the case of employment or other contracts involving personal services.

Specific performance is not available in the following circumstances; 

• damages provide an adequate remedy;
•  where the order could cause undue hardship;
•  where the contract is of such a nature that constant supervision by the court would be required, eg, Ryan v Mutual Tontine Association;
•  where an order of specific performance would be possible against one party to the contract, but not the other;
•   where the party seeking the order has acted unfairly or unconscionably. He is barred by the maxim ‘He who comes to Equity must come with clean hands’; or
•  where the order is not sought promptly the claimant will be barred by the maxims ‘Delay defeats the Equities’ and ‘Equity assists the vigilant but not the indolent’.

                     b)     Injunction

An injunction is a court order requiring a person to cease doing a specific act. An injunction may be made to enforce a contract of personal service for which an order for specific performance would be refused.

Injunctions fall into two broad categories: 

•  Prohibitory injunction, which orders the defendant not to do something in breach of contract. 
•  Mandatory injunction, which is an order that something must be done so as to reverse the effect of a breach.

                 c)      Rescission

This is whereby the old contract which was breached is rescinded. Rescinding a contract means that it is cancelled or rejected and he parties are restored to their pre-contract condition. The following conditions attach to rescission of contracts;

      ii)     It must be possible for each party to be returned to the pre-contract condition;

    iii)  An innocent 3^rd party who has acquired rights in the subject matter of the contract will prevent an original transaction from being rescinded.

    iv)   The right to rescind must be exercised within a reasonable time of it arising.

     v)     Where a person affirms a contract expressly or by conduct, it may not be rescinded.