Distinguish legal rights from equitable rights and outline the main equitable remedies available to an aggrieved party

Legal rights Equitable rights
These are rights which originally could only be enforced the common law courts.

 

These rights are enforceable as of right i.e. once an infringement is established the aggrieved party is entitled to damages, for

example breach of contract.

These rights were originally enforceable the Lord Chancellors Courts.

 

The enforcement of these rights is discretional

i.e. it is for the court to determine whether or

not the remedy sought will be availed e.g. rights of trustees or beneficiaries.

The main equitable remedies include:

  • Injunction: this is an order of the court which restrains a person from doing or continuing to do a particular thing or compels him to undo what he has wrongly done. May be temporal or perpetual.
  • Specific Performance: this is a court order which compels a party to perform its contractual obligations as agreed. It compels a party to honour its part of the contract without an option to pay damages.
  • Rescission: the essence of this remedy is to restore parties to a contract to the position they were before the contract.
  • Account: this is generally an exposition of the utilization of money or goods coming into the hands of a person in a specific capacity e.g. agent, trustee or promoter. It entails the handing over of anything obtained in a manner inconsistent with the position e.g. secret profit
  • Tracing: this is a court order which enables a party to follow and recover assets or monies which change hands in certain circumstances for example: void contracts. The remedy is generally available only if the subject matter or its application is identifiable.
  • Winding Up: is the legal process which a company‟s existence is brought to an end, its assets realized, liabilities ascertained and paid and the balance if any distributed between the members.
  • Appointment of Receiver: this is a person appointed a debenture holder or the court at the instigation of a creditor to take over the borrowers security to facilitate payment of the amount owing.



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