Equitable remedy

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In law, equitable remedies are the remedies developed and granted by the old courts of equity, such as the Court of Chancery in England, and still available today in common law jurisdictions.^[1] Equity is said to operate on the conscience of the defendant, so an equitable remedy is always directed at a particular person, and his knowledge, state of mind and motives may be relevant to whether a remedy should be granted or not.

Equitable remedies are distinguished from "legal" remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them. Equitable principles applied in granting equitable remedies include "he who comes to equity must come with clean hands" (ie the court will not assist a claimant who is himself in the wrong or acting for improper motives), laches (equitable remedies will not be granted if the claimant has delayed unduly in seeking them), "equity will not assist a volunteer" (meaning that a person cannot litigate against a settlor without providing the appropriate consideration e.g Money) and that equitable remedies will not normally be granted where damages would be an adequate remedy.

The most important limitation relating to equitable remedies is that an equitable remedy will not lie against a bona fide purchaser for value without notice.

In common law jurisdictions, there are a variety of equitable remedies, but the principal remedies are:

injunction^[2]
specific performance
account
rescission
rectification
estoppel
certain proprietary remedies, such as constructive trusts or tracing^[3]
subrogation
in very specific circumstances, an equitable lien

The two main equitable remedies are injunctions and specific performance, and in casual legal parlance references to equitable remedies are often expressed as referring to those two remedies alone. Injunctions may be mandatory (requiring a person to do something) or prohibitory (stopping them doing something). Specific performance requires them to perform a contract, for example by transferring a piece of land to the claimant.

Ordering of an account is usually ordered where payment of damages would still leave the wrongdoer unjustly enriched at the expense of the wronged party. However, orders for an account are not normally available as of right, and only arise in certain circumstances.^[4]

Rescission and rectification are remedies in relation to contracts (or, exceptionally, deeds) which may become available.

Constructive trusts and tracing remedies are usually used where the claimant asserts that property has been wrongly appropriated from them, and then either (i) the property has increased in value, and thus they should have an interest in the increase in value which occurred at their expense, or (ii) the property has been transferred by the wrongdoer to an innocent third party, and the original owner should be able to claim a right to the property as against the innocent third party.

Equitable liens normally only arise in very specific factual circumstances, such as unpaid vendor's lien.

Interestingly, damages can also be awarded in "equity" as opposed to "at law",^[5] and in some legal systems, by historical accident, interest on damages can be awarded on a compound basis only on equitable damages, but not on damages awarded at law.^[6] However, most jurisdictions either have ended this anachronism, or evinced an intention to do so, by modernising legislation.