Legal remedy

A legal remedy, also judicial relief or a judicial 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 another court order to impose its will.

In common law jurisdictions and mixed civil-common law jurisdictions, 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 available in these systems 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 (albeit one sometimes honored in the breach) 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 its proper redress." [1][2]

Types of Remedies in Common Law Systems

There are three crucial categories of remedies in common law system. One is from the 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 equitable jurisdiction developed in the English Court of Chancery and Court of Exchequer. The injunction is a type of equitable remedy,[3] as is specific performance, in which someone who enters into a contract is forced to perform whatever promise has been reneged upon. Two additional equitable remedies are the equitable lien and the constructive trust.

The third broad group is declaratory remedies. Common examples are the declaratory judgment and the action to quiet title, and these remedies usually involve a court's determination of how the law applies to particular facts without any command to the parties.[4] Courts give declaratory remedies about many different kinds of questions, including whether a person has a legal status, who the owner of a property is, whether a statute has a particular meaning, or what the rights are under a contract.[5]

While those are the three basic categories of remedies in common law, there are also a handful of others (such as reformation and rescission, both dealing with contracts whose terms need to be rewritten or undone).

Case-by-case remedies versus announced remedies

Remedies can be, and in American law usually are, determined case by case, and take into account many different facts including the amount of harm caused to the victim. Remedies can also be determined in advance for an entire class of cases. For example, there can be a fixed fine for all violations of a legal rule, regardless of how much harm was caused in the particular case.[6]

References

  1. ↑ 1 William Blackstone, Commentaries on the Laws of England 23
  2. ↑ See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162–163 (1803).
  3. ↑ Douglas Laycock, The Death of the Irreparable Injury Rule (Oxford Univ. Press 1991).
  4. ↑ Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review 77: 1275, 1281.
  5. ↑ Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review 77: 1275, 1281.
  6. ↑ Bray, Samuel L. (2012). "Announcing Remedies". Cornell Law Review 97.

Examples of legal remedies

Categories of remedies

External links

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