Remedies Reclassified

Name: Remedies Reclassified
Price: 64.45 USD
Availability: InStock
ISBN: 9780199278756

ISBN-10: 019927875X

ISBN-13: 9780199278756

Edition: 2005

Authors: Rafal Zakrzewski

List price: $210.00

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This book is about the law of remedies. It establishes the boundaries of this discrete area of law and provides a new classification of remedies. Zakrzewski first examines the difficulties of the term 'remedy', and identifies the most robust notion of a remedy. Remedies are broadly approximated to court orders; more strictly, they are the rights arising from these orders. This enables a rigorous separation of remedies from substantive rights, that is, rights which exist before the making of a court order. The author then reviews established classifications of remedies, showing how they are seriously deficient and developing a new taxonomy based upon the relationship between substantive…

Book details

List price: $210.00
Copyright year: 2005
Publisher: Oxford University Press, Incorporated
Publication date: 6/23/2005
Binding: Hardcover
Pages: 268
Size: 6.14" wide x 9.21" long x 0.80" tall
Weight: 1.232
Language: English



Table of Cases


Table of Legislation



Introduction



Instability of 'Remedy'



Introduction



Literal and Non-Legal Meanings of Remedy



Broad Functional Definition of Legal Remedy



Narrow Meanings of Legal Remedy



An action or cause of action as a remedy



A substantive right as a remedy



Kinds of substantive rights: primary and secondary



Confusion as to secondary rights



A secondary right as a remedy



A primary right as a remedy



A court order as a remedy



An order made 'as of right'



An order given in court's 'strong' discretion



Means of enforcing a court order as a remedy



Final outcome as a remedy



Conclusion



Writers on 'Remedies'



Introduction



Lawson - Remedies of English Law



The work



Scope of the concept of a remedy



Taxonomy of remedies



Summary



Burrows - Remedies for Torts and Breaches of Contract



The work



Scope of the concept of a remedy



Taxonomy of remedies



Summary



Meagher, Gummow and Lehane - Equity: Doctrines and Remedies



The work



Scope of the concept of a remedy



Taxonomy of remedies



Summary



Tilbury - Civil Remedies



The work



Scope of the concept of a remedy



Taxonomy of remedies



Summary



Walker - The Law of Civil Remedies in Scotland



The work



Scope of the concept of a remedy



Taxonomy of remedies



Summary



Conclusion



Stable Core Meaning of 'Remedy'



Introduction



Stable Core Meaning of Remedy



Core usage of remedy



The nature of a court order or pronouncement



A note on self-help 'remedies'



Rejection of Various Definitions



Broad definition of remedy not adequate



Rejected narrow meanings of 'remedy'



An action or cause of action ought not to be called a remedy



A secondary right ought not to be called a remedy



A primary right ought not to be called a remedy



Means of enforcement of a court order ought not to be called a remedy



Final outcome ought not to be called a remedy



Relationship Between Substantive Rights and Remedies



Line between substance and remedy



Fitting substantive rights, remedies, and enforcement together



Existence of substantive rights



Substantive rights before remedies or vice versa?



Remedies without substantive rights



Substantive rights without remedies



Conclusion



Classification of Remedies



Introduction



Classifications of Remedies



Most common classifications



Received classification



What is Being Classified?



Effect of imprecise definition on taxonomy



Definition of 'remedy'



Foreign matter must be excluded



What Criterion Operates?



What is the criterion for the categories of compensation, restitution, and punishment?



Are specific enforcement, coercion, and declaration goal-based categories?



What are the criteria for the specific enforcement category?



What is the criterion for the coercion category?



What is the criterion for the declaration category?



Criteria must not be mixed



What Could a Disciplined Classification of Remedies Look Like?



First principles of taxonomy



Features of remedies and possible criteria



The summa divisio or first level



Lower levels of the hierarchy



Conclusion



Appendix



Discretion and Remedies



Introduction



A Closer Look at Discretion



Definition of discretion



Discretion and rules



Constraints on discretion



Reasons for discretion



Discretion as to Replicative Remedies



Introduction



Discretion as to common law remedies



Discretion as to equitable remedies



Characterized as discretion to grant or refuse the remedy



Characterized as discretion as to whether a 'bar' to the remedy operates



Downplaying the term 'discretion' in relation to equitable remedies



'Discretion' to impose conditions



Remedial Discretion as to Transformative Remedies



Introduction



Remedial discretion distinguished from discretion as to equitable replicative remedies



Remedial discretion distinguished from judicial development of the law



Law-making at the institutional level (or 'rule-making')



'Law'-making at the instance-specific level (or 'remedy-making')



Conclusion



Replicating Primary Rights: Common Law Remedies



Introduction



Replication of Primary Rights



Primary rights capable of replication



Primary rights not capable of replication



Primary rights not replicated for policy reasons (bars)



Replication at Common Law and in Equity



Award of Sum Due Under a Contract



Form of the order



Nature of the remedy



Function of the remedy



Effect on substantive rights



Advantages of the remedy



Nature of the substantive right replicated



Right to the payment of an agreed sum



Right to the payment of an unspecified sum



Enforcement of the remedy



Award of Restitution for Unjust Enrichment at the Expense of Another



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Enforcement of the remedy



Order for the Recovery of Land



Form of the order



Nature of the remedy



Nature of the substantive right replicated



The claimant's substantive right



The nature of the right's replication



Enforcement of the remedy



Replicating Primary Rights: Equitable Remedies



Introduction



Injunction Replicating a Primary Right



Form of the order



Nature of the remedy



Duration of operation



Function of the remedy



Advantages of the remedy



Effect on substantive rights



Nature of the substantive right replicated



Negative primary right (prohibitory injunction)



Common law rights



Replication of negative contractural rights



Replication of negative non-contractual legal rights



Equitable rights



Statutory rights



Positive primary non-contractual right (mandatory injunction)



Common law rights



Equitable rights



Statutory rights



Enforcement of the remedy



Decree of Specific Performance of a Contract



Form of the order



Nature of the remedy



Function of the remedy



Advantages of the remedy



Effect on substantive rights



Nature of the substantive right replicated



Right to the transfer of an asset



Right to the provision of a service



Right to the payment of money



Two senses of 'specific performance'



Enforcement of the remedy



Order for the Execution of a Trust and Order for a Common Account



Form of the order



Order for execution of a trust



Order for a common account



Nature of the remedy



Function of the remedy



Advantages of the remedy



Effect on substantive rights



Nature of the substantive right replicated



Enforcement of the remedy



Rectification 'Order'



Form of the order



Nature of the remedy



Function of the remedy



Effect on substantive rights



Nature of the substantive right replicated



Enforcement



'Order' for Rescission



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Enforcement



Replicating Primary Rights: Statutory Remedies



Introduction



Order for the Recovery of Goods (or their Value)



Form of the order



Nature of the remedy



Function of the remedy



Advantages of the remedy



Effect on substantive rights



Nature of the substantive right replicated



Enforcement of the remedy



Declaration of Primary Right



Form of the judgment



Nature of the remedy



Function of the remedy



Advantages of the remedy



Effect on substantive rights



Nature of the substantive right replicated



Common law rights



Contractual rights



Property rights usually protected by the law of tort



Equitable rights



Statutory rights



Enforcement of the remedy



Replicating Secondary Rights: Common Law Remedies



Introduction



Replication of Secondary Rights



Award of Damages



Form of the order



Nature of the remedy



Function of the remedy



Effect on substantive rights



Advantages of the remedy



Nature of the substantive right replicated



Compensation



Arising from a breach of contract



Loss of expected enrichment



Loss of bargain



Reliance loss



Arising from a tort



Restitution



Arising from a breach of contract



Arising from a tort



Punishment



Arising from a tort



Arising from a breach of contract



Enforcement of the remedy



Replicating Secondary Rights: Equitable Remedies



Introduction



Award of Equitable Compensation



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Beneficiary's secondary right to direct payment



Beneficiary's secondary right to have the trust fund restored



Enforcement of the remedy



Orders Giving Effect to Secondary Rights to an Account



Order for an account on the basis of wilful default



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Consequential remedy (equitable compensation)



Order for an account of profits



Form of the order



Nature of the remedy



Nature of substantive right replicated



Arising from an equitable wrong



Arising from a breach of contract



Consequential remedy (equitable restitution)



Enforcement of the remedies



Mandatory Injunction to Undo or Prevent a Wrong



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Arising from a breach of contract



Arising from a tort



Arising from an equitable wrong



Arising from an infringement of an intellectual property right



Enforcement of the remedy



Replicating Secondary Rights: Statutory Remedies



Introduction



Order for the Recovery of the Value of Goods (or the Goods Themselves)



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Enforcement of the remedy



Award of Damages 'in Addition to' Specific Relief under Section 50 of the Supreme Court Act



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Enforcement of the remedy



Declaration of a Secondary Right



Form of the order



Nature of the remedy



Nature of the substantive right replicated



Arising from a breach of contract



Arising from an equitable wrong



Enforcement of the remedy



Transformative Remedies



Introduction



Distinction between constitutive and immediately enforceable remedies



Example of statutory power to grant transformative remedies



Discretion and transformative remedies



Statutory Transformative Remedies



Constitutive remedies



Jurisdiction to grant the remedy



Form of the 'order'



Enforceable transformative remedies



Jurisdiction to grant the remedy



Form of the order



Equitable Transformative Remedies



Constitutive remedies



Jurisdiction to grant the remedy



Form of the order



Enforceable transformative remedies



Common Law Transformative Remedies



Enforcement of Transformative Remedies



Constitutive remedies



Enforceable transformative remedies



Conclusion


Bibliography


Index