HOME

TheInfoList



OR:

A legal remedy, also referred to as 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 Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical ...
, imposes a
penalty Penalty or The Penalty may refer to: Sports * Penalty (golf) * Penalty (gridiron football) * Penalty (ice hockey) * Penalty (rugby) * Penalty (rugby union) * Penalty kick (association football) * Penalty shoot-out (association football) * Penal ...
, or makes another
court order A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out ...
to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual. In
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
) and an equitable remedy (e.g.
injunctive relief An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or i ...
or
specific performance Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, ...
). Another type of remedy available in these systems is
declaratory relief A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal ma ...
, where a court determines the rights of the parties to action without awarding damages or ordering equitable relief. The type of legal remedies to be applied in specific cases depend on the nature of the wrongful act and its liability. In the legal system of the United States, there exists a traditional form of judicial remedies that serve to combat juror biases caused by news coverage. The
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
of the United States forbids the government from censoring and restraining the freedom of expression, which allows the ever-expanding news media to influence the legal process. The entangled relationship between mass media and the legal system presents challenges to the Sixth Amendment that guarantees the rights of criminal defendants to receive fair trials. Trial-level remedies are in place to avoid pretrial publicity from affecting the fairness of a trial. To minimize the impacts of pretrial publicity, there are six kinds of judicial remedies at the disposal of judges: voir dire,
change of venue A change of venue is the legal term for moving a trial to a new location. In high-profile matters, a change of venue may occur to move a jury trial away from a location where a fair and impartial jury may not be possible due to widespread publ ...
, change of veniremen, continuance, admonition, sequestration. In
English English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ...
and American
jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...
, 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 Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...
: "It is a settled and invariable principle in the laws of
England England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe ...
, that every right when with-held must have a remedy, and every injury its proper redress." In addition to the United Kingdom and the United States, legal remedy is a concept widely practiced in the legal system of a variety of countries, though approached differently.


Three types of legal remedy in common law systems

There are three crucial categories of judicial remedies in common law systems. The legal remedy originates from the law courts of England and is seen in the form of a payment of money to the victim, commonly referred to as damages or replevin. Damages aim at making up the harm that a breaching party has committed to the victim. In the history of the English legal system, the legal remedy only existed in the form of monetary relief, and therefore the victim must petition through a separate system if the victim wanted other forms of compensation. Although the courtrooms and proceedings have been integrated, the distinction between requests for money versus action is still present. Non-monetary compensation refers to the second category of judicial remedies—equitable remedies. This type of remedy comes from the equitable jurisdiction developed in the English
Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law. The Chancery had jurisdiction over all matters of equ ...
and Court of Exchequer. Declaratory remedies make up the third category of judicial remedies. Different from the other two categories, declaratory remedies usually involve a court's determination of how the law applies to particular facts without any command to the parties. 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. While these are 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).


Legal remedies (damages)

* Compensatory damages
Compensatory damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
are paid directly to the claimant to compensate for loss and injury when the defendant is proven to be liable for breach of duty or committing wrongful acts. In cases where the claimant has suffered ascertainable costs, it is easy to determine the amount of compensatory damages. In other cases where the liability results from the defendant failing to perform a service, it is necessary to calculate compensatory damages by inquiring how much it would cost for a third party to provide the same service. However, the court takes into account when the non-breaching party makes savings or profits because he or she is involuntarily relieved from the responsibilities specified in a broken contract. If the non-breaching party makes gains from alternative arrangements, compensatory damages are equivalent to his or her loss subtracted by the gains made from the substitution. * Consequential damages
Consequential damages Consequential damages, otherwise known as special damages, are damages that can be proven to have occurred because of the failure of one party to meet a contractual obligation, a breach of contract. From a legal standpoint, an enforceable contra ...
, also known as special damages, are intended to compensate for the indirect consequences incurred by the defendant and are sanctioned on a case-by-case basis due to their specificity. Lost profits make up a common type of consequential damages in contract laws. When the party breaching a contract causes the plaintiff to lose profits, the money is recoverable if the plaintiff can prove its ascertainment and trace it to the wrongful conduct of the breaching party, which can be extremely difficult. Moreover, legal expenses including the ones generated by bringing a lawsuit against the breaching party to attain legal remedies do not count toward consequential damages and be charged from the defendant, unless stated in the contract otherwise. * Punitive damages
Punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
are different from other types of damages because their main purpose is to punish the defendant and deter him or her and many others from engaging in similar kinds of unlawful conduct in the future. The maliciousness and willingness of the defendant to carry out certain wrongful acts are typically what compel the court to impose punitive damages. Since the intention of punitive damages is typically not to compensate the plaintiff, it is often that only a part of it would be awarded to the plaintiff at the discretion of judges and that they serve only as complements to compensatory damages. * Incidental damages
Incidental damages Incidental damages refers to the type of legal damages that are reasonably associated with, or related to, actual damages. In American commercial law, incidental damages are a seller's commercially reasonable expenses incurred in stopping deliver ...
, closely associated with compensatory damages, are costs used to prevent further losses that result from the breach of contract on behalf of the nonbreaching party. For example, a company breaches a hiring contract that it signed with a prospective employee. The expenditures that the employee spent searching for another job are an element of incidental damages. * Nominal damages The plaintiff is entitled to receive nominal damages in cases in which there is no actual harm or the plaintiff is unable to prove harm. Although the amount of nominal damages is typically small, the plaintiff can use the award of nominal damages as a justification to plead for punitive awards or appeal a violation of his or her rights that form the basis of the lawsuit, common in cases involving constitutional rights. * Liquidated damages
Liquidated damages Liquidated damages, also referred to as liquidated and ascertained damages (LADs), are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g., late ...
refer to a predetermined amount of money that must be paid by the breaching party, and they are fixed numbers agreed upon by both parties during the formation of a contract. Courts enforcing a liquidated damages provision would consider the reasonableness of its amount, specifically if it approximates the amount of actual damages caused, and the ascertain. Failing to meet this condition would turn liquidated damages into an unenforceable penalty that inequitably benefits the party receiving liquidated awards. * Statutory damages In certain cases, a statute dictates the amount of damages, rather than the calculation of the harm or loss endured by the plaintiff. The Fair Debt Collection Practices Act would charge up to $1,000 for every violation of its provision, which is an example of
statutory damages Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in wh ...
. Treble damages is a type of statutory damages in which the amount of compensatory damages awarded to a plaintiff can be tripled given the warranty of a statute.


Equitable remedies

There are three characteristics of equitable remedies that differ from damages. First, the jury is not used in cases involving equitable remedies. Second, in sanctioning equitable remedies, the court does not make decisions based on precedents but tends to rely on the justice that needs to be served. Third, equitable remedies are not monetary. Rather, they include actions, properties, etc., that the court orders the defendant to perform in order to bring both parties in a lawsuit back to the position in which they were prior to their contract. * Injunction
Injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
is a court order that coerces the defendant to take specific acts or refrains him or her from engaging in certain actions, i.e., breaching a contract. In the U.S., injunction is the most common type of equitable remedies, and failure to comply with an injunction can lead to results ranging from fines to imprisonment. * Accounting for profits Accounting for profits is an inquiry into the amount of gains that the defendant benefited from his or her wrongs. Accounting is more commonly practiced in cases against a fiduciary or breach of contract in which the ascertainment of the defendant's profits is important. * Constructive trust
Constructive trust A constructive trust is an equitable remedy imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enr ...
is enforced in situations where the possession of a property by the defendant unjustly enriches him or her, and therefore the court decides to grant the ownership of the property to the plaintiff. * Equitable lien
Equitable lien A lien ( or ) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the ''lienee'' and the pers ...
is applicable when the defendant used unjust funds obtained from the plaintiff to make improvements to his or her property. By granting the plaintiff a security interest in the property of the defendant, it guards the right of the plaintiff to have the funds returned from the defendant. * Subrogation In a subrogation case, the property that belongs to the plaintiff from a legal standpoint is used by the defendant to repay the debt to a third party. Subrogation entitles the plaintiff to the rights as the third party against the defendant. * Specific performance
Specific performance Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, ...
refers to the court compelling the defendant to perform certain actions. This type of equitable remedy is limited in scope because in contract laws for example, issuing specific performance would require the property that gives rise to the lawsuit to be unique, or that it is more practical for the defendant to compensate the plaintiff by paying for compensatory damages. * Reformation Reformation, or referred to as
rectification Rectification has the following technical meanings: Mathematics * Rectification (geometry), truncating a polytope by marking the midpoints of all its edges, and cutting off its vertices at those points * Rectifiable curve, in mathematics * Recti ...
, is when the court practices remedies by correcting the writings of a contract. Under two circumstances, reformation applies either when (1) the writing does not reflect the agreement made between the parties, or (2) one party signed the contract in the first place because of manipulation by fraud planned and executed by the other party. * Equitable rescission Equitable rescission gives the innocent plaintiff the right to undo or rescind a contract when the plaintiff entered the contract as a result of fraud, misrepresentation, etc., or when the contract has been breached by the other party. To restore the situation to what it was before the contract, both parties need to return what they have received from the exchange.


Declaratory remedies

Declaratory remedies, or declaratory judgment, do not belong to the category of damages or equities. They are legal determinations made by the court to address ambiguity or disputes without sanctioning an action or practice against the parties involved. Declaratory remedies serve to affirm the validity of the claims and requests made by the plaintiff, accompanied by injunction in selective cases at the discretion of judges or juries. Declaratory remedies are a component of preventive adjudication because in cases that demand only declaration, no actual harm or loss has been incurred by the plaintiff.


Trial-level remedies for pretrial publicity

Pretrial publicity can lessen the effectiveness of jurors in ways such as presenting incriminating information or arousing blind emotions, which significantly influence the outcome of trials and damage their fairness. As technologies develop, the prevalence of mass media makes legal information more accessible and thus poses a larger threat to the process of adjudication. Trial-level remedies are designed for judges to mitigate the impact of pretrial publicity without infringing the freedom of expression for the press.


Voir dire

Voir dire, which means "tell the truth" in French, refers to a process in which attorneys and judges conduct interviews with potential jurors to discover their bias and rule out the ones who cannot be impartial. The selection procedure usually starts with a written questionnaire before questioning. In the process of questioning, both parties have the right to excuse potential jurors through challenges for cause. An attorney must convince the court with legitimate reasons to eliminate a potential juror. Another method to screen out a member from a pool of jurors is to use peremptory challenges, which cannot be rejected by the judge. However, attorneys can only use peremptory challenges for a limited number of times.


Change of venue

Change of venue A change of venue is the legal term for moving a trial to a new location. In high-profile matters, a change of venue may occur to move a jury trial away from a location where a fair and impartial jury may not be possible due to widespread publ ...
is to relocate the trial to another area in the same state that has presumably received less exposure of information regarding the case.


Change of veniremen

Instead of moving the location of the trial, the court can also import jurors from a distant community, where less coverage has been given to the case. Venir is a French word meaning "to come."


Continuance

Continuance is to postpone the trial on the grounds that the prejudice of jurors would reduce as they forget much information about the case from media. The delay also results in the defendant spending additional time in jail or that it may attract more media attention and drive up the publicity of the case.


Admonition

Admonition utilizes the effectiveness of the instructions of the judge to the jurors and the jurors' obedience. By giving a panel of jurors instructions such as make verdicts solely based on the evidence presented in the court, the judge seeks to diminish the influence of mass media.


Sequestration

For high-profile cases, the jurors are isolated until the case is closed. They would be housed in together while their access of all forms of media and technologies is either screen or restrained.


Case-by-case versus announced

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 a particular case.


Application of legal remedy in different jurisdictions

Monetary compensatory damages, along with injunction, are most commonly used in the United States. Similar to the U.S., the courts in the United Kingdom tend to award monetary compensatory damages in tort cases. However, punitive damages are not applicable in the legal systems of the U.K. and Japan or the contractual cases in Australia and occupy a limited but expanding scope in the People's Republic of China. In European states, the type of remedies, including the character and amount of damages, are determined on a case-by-case basis through factors such as the location where the illegal conduct caused damages. The enforcement of legal remedies can be difficult in international litigations as the law in one jurisdiction does not apply to another.


See also


Examples

Damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
or legal remedies, which may include: *
Compensatory damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
*
General damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
* Special damages *
Consequential damages Consequential damages, otherwise known as special damages, are damages that can be proven to have occurred because of the failure of one party to meet a contractual obligation, a breach of contract. From a legal standpoint, an enforceable contra ...
*
Incidental damages Incidental damages refers to the type of legal damages that are reasonably associated with, or related to, actual damages. In American commercial law, incidental damages are a seller's commercially reasonable expenses incurred in stopping deliver ...
* Expectation damages * Reliance damages *
Punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
* Nominal damages *
Liquidated damages Liquidated damages, also referred to as liquidated and ascertained damages (LADs), are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g., late ...
*
Statutory damages Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in wh ...
* Treble damages *Award of
attorney's fees Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney ( lawyer or law firm) for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Recent studies suggest that whe ...
Equitable remedies, which may include: *
Injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
* Accounting for profits *
Constructive trust A constructive trust is an equitable remedy imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enr ...
*
Equitable lien A lien ( or ) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the ''lienee'' and the pers ...
* Subrogation *
Specific performance Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, ...
*Reformation/
rectification Rectification has the following technical meanings: Mathematics * Rectification (geometry), truncating a polytope by marking the midpoints of all its edges, and cutting off its vertices at those points * Rectifiable curve, in mathematics * Recti ...
* Equitable rescission *
Restitution The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court ...
Declaratory remedies


Categories

*
Adequate remedy An adequate remedy or adequate remedy at law is part of a legal remedy (either court-ordered or negotiated between the litigants) which the court deems satisfactory, without recourse to an equitable remedy''Complete Digest of All Lawyers Report ...
* Civil remedy * Cumulative remedy *
Civil and political rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...
*
Election of remedies In the law of civil procedure, election of remedies is the situation in which a winning party in a lawsuit must choose the means by which its injury will be remedied. For example, if a court finds that the plaintiff's painting was stolen by the de ...
*
Equity Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
* Equitable remedy * Extraordinary remedy * ''
Habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
'' * Joinder of remedies *
Provisional remedy The purpose of a provisional remedy is the preservation of the status quo until final disposition of a matter can occur. Under United States law, FRCP 64 provides with several types of seizure (e.g. garnishment, replevin, attachment) that a Feder ...
* Remedy over


References


Further reading


University of Toronto Law Journal special issue
on legal remedies for human rights violations {{DEFAULTSORT:Legal Remedy Judicial remedies Transitional justice