Damages The Law Of Damages Term Paper

Length: 9 pages Subject: Business - Law Type: Term Paper Paper: #65478848 Related Topics: Copyright Law, Commercial Law, Common Law, Privacy Laws
Excerpt from Term Paper :

Under tort law, injured parties are entitled to compensatory damages which include both general damages for pain and suffering and disfigurement and special damages which include payment for loss of past and future earnings and past and future medical expenses. The awarding of compensatory damages is totally within the discretion of the jury. Under the common law, the plaintiff is entitled to a single lump sum payment. Some states have begun to limit the amount that plaintiffs can receive as a result of a personal injury or wrongful death due to the present political unpopularity of personal injury actions.

Other affected by the losses caused by personal injury actions are also entitled to seek recovery. Some examples of such individuals include spouses, children, employers of the injured party. The damages available for such individuals vary depending on the circumstances of the relationships and how the relationship is affected.

VIII. Fraud

The available remedies for fraud include rescission of the contract and restitution or affirmance of the contract and an awarding of damages. The plaintiff must choose his remedy prior to judgment. Damages are available in law, both general and special. Punitive damages, however, must be specifically pled.

IX. Duress, Undue Influence, and Unconscionable Conduct

All three of these causes of action are related to the relationship between the parties and how such relationship affected their business dealings. The remedy in all three causes of action is dependent on the nature of the influence and depth of such influence. Rescission of any agreement between the parties is generally part of the remedy.

X. Mistake

Mistakes occur in a variety of relationships and all are not necessarily compensable. In those relationships which rise to the level of demanding legal intervention the only remedies available are based in restitution. When mistakes are made relative to the integration of certain terms in an agreement or transaction, reforming the mistaken terms is an available remedy as well.

XI. Remedies for Breach of Contract

Actions involving the sale of land are numerous in the legal field. Such transactions provide a great number of opportunities for disputes to occur and, therefore, it is not surprising that such disputes have given rise to a significant number of legal distinctions. The remedies available for parties in land sale contracts vary depending on where in the sales process the alleged breach has occurred. In such transactions, the nature of the remedies available range from general damages, specific performance, rescission and restitution.

Other than land sales contracts disputes arise in other contract relationships. These other contracts, such as building contracts, personal service contracts, and the sale of goods are all dependent on the circumstances surrounding their formation and execution. The remedies available depend on the specifics of the individual contracts but, in most cases, the full range of remedies is available.

XII. Remedies in Connection with Enforceable Contracts

Often parties may be limited in their available remedies due to problems in either the formalities surrounding the formation of a contract such as compliance with the Statue of Frauds or some similar provision or there was never any legally recognized agreement between the parties. In such situations, the parties may be required to rely upon equity as their only available form of redress. The full range of equitable remedies are generally available.


The development of remedies has paralleled the development of the common law. When disputes arise between parties it is only natural that a remedy of some fashion is designed that satisfies the relative interests. From this beginning the law of remedies has developed.

Over the course of time the availability of legal remedies has greatly expanded in proportion to the growth in legal rights. When the British common law system first began the number of recognized legal rights was minimal but as society has begun to recognize more and more legal rights the availability of remedies for perceived violations of those rights has also expanded.

The law or remedies involves a determination of the form and type of relief...


There are a variety of legal remedies available to parties and most of these remedies can be classified based upon their particular function. In essence, there are three general remedies available: general, restitution, and specific. Under each type of remedy there are additional classifications.

General damages include compensatory damages, nominal damages and punitive damages. The remedy available to the parties is dependent upon the circumstances of each case. Compensatory damages are intended to either make the intended party whole as in the case of tort cases, or to ensure that the parties to a contract are provided with what they have lost as a result of the breach. Nominal damages, on the other hand, are received when no real loss has occurred or cannot be calculated and are awarded when a personal right has been violated. Punitive damages are awarded in addition to compensatory and nominal damages when the behavior causing the injury is so willful, wanton, or malicious as to merit an additional award. The purpose of punitive damages is to punish the defendant in an effort to discourage repetition of the conduct.

In addition to general damages parties can also seek a remedy known as restitution. The concept behind restitution is to restore to the plaintiff any benefit that the defendant may have received. Restitution may involve the return of money or property. Finally, in certain types of litigation, the parties may request that certain behaviors be either prohibited or required through the intervention of the courts. These remedies identified as specific performance, injunction, or declaratory relief are known as equitable remedies and can only be granted by a judge.

The American system of remedies developed through the English common law. Under the English legal system two different forms of remedies emerged: legal and equitable. In England, legal and equitable remedies were imposed through different courts but in the United States this bifurcated system was never adopted and litigants were free to seek both forms of remedy in the same court. Legal remedies are generally intended to substitute for a wrong suffered by one of the parties when a return of property or other form of resolution is not possible. Equitable remedies are intended to impose personal duties on the defendant, either prohibiting or coercing certain acts and are appropriate only when legal remedies are inadequate. Legal remedies may be imposed by either a jury or judge while equitable remedies are subject to the exclusive jurisdiction of judges.

The enforcement of equitable and legal remedies are remarkably different. Because legal remedies usually involve monetary awards of some form it remains incumbent on the prevailing party to take the necessary action to enforce the remedy. Equitable remedies, on the other hand, are personal in nature and are enforceable through the courts. If the remedy is not obeyed, a defendant can find himself subject to additional sanctions such as contempt charges, additional fines, incarceration or any combination of such sanctions.

In most legal cases, litigants have a choice of remedies. Litigants are not foreclosed from choosing between available remedies but in the case where remedies are in conflict the litigant must elect between remedies prior to judgment.

Parties seeking legal remedies, either in tort or contract, must be capable of proving each of the elements of the particular cause of action that forms the basis of their action. All affirmative defenses available under the common law to such actions such as assumption of the risk, contributory negligence, and last clear chance are available to such litigants.

Equity actions, however, have specific defenses that are not ordinarily available to those seeking legal remedies. The unique nature of equitable actions demands a higher level of conduct on the part of the litigants so there are special defenses available. As an example, parties seeking equitable relief must do so with clean hands, that is, the plaintiff seeking equitable relief must not do so by engaging in any conduct that is considered to be unethical or improper. Additionally, because equity developed as a result of the courts attempting to maintain fairness, the courts will not ordinarily enforce situations where there is any indication of unconscionability. Fairness is the essence of equitable relief and where a situation presents a one-sided agreement, the courts will ordinarily not grant relief.

Legal remedies are the means by the law attempts to balance the rights of parties. The long held maxim is that unless there is a right there is no remedy. As the individual rights of litigants have expanded, so have the available remedies. This is a field of law that is highly dynamic and subject to considerable change and, therefore, it is imperative that all legal professionals follow new developments in this area carefully.

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