The only explanation for the differences between law and justice is to be found in the history and politics of England in the twelfth century, but in practical terms the differences are remarkable. First, juries are not used only in cases. Second, justice is based less on precedent than on the sense that justice must be done. Third, and most importantly, when what is sought by the non-offending party is not money – that is, if there is no adequate remedy – fairness can provide redress. In equity, a person may induce a judge to order the offending party to deliver real property or refrain from doing something they should not do, or to return consideration given by the non-offending party to restore the parties to a pre-contractual status (specific performance, injunction or restitution). Just considerations have been present in human societies for unfathomable eons. From ancient Greece and Rome to modern times, canon law and medieval English chancellery, justice introduced considerations of fairness into legal thought and helped mitigate the harshness of draconian laws. What is considered right has changed over time, with the righteous innovations of the past generally becoming today`s harsh law. The purpose of this chapter is to show the continuity of justice over time and between legal systems, as a stepping stone to the argument presented later in the book that justice is a source of international law. The chapter explains that the different ways in which we understand justice owe something to their historical evolution in our respective legal systems. Finally, the chapter highlights the path of justice from domestic legal systems to international law. For librarians and administrators, your personal account also provides access to institutional account management.
Find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. Our books are available by subscription or purchase in libraries and institutions. Equitable remedies for violations are available if remedies do not complete the offending party. Equitable remedies are specific enforcement (an order requiring a person to deliver to the buyer the single thing that the seller has contracted), injunction (an injunction requiring a person to refrain from doing what he or she should not do) and restitution (restitution of the benefit granted to him or her if the contract is not performed. by a party, to the extent necessary to avoid a sanction against the offending party). The third type of equitable legal protection is restitution. Restitution is a remedy applicable to different types of cases: those where the contract was avoided due to lack of competence or misrepresentation, those where the other party breached, and those where the party seeking restitution breached. As the word implies, restitution is a return of what it has given to the other party. Consequently, compensation can only be awarded to the injured party to the extent that the injured party has provided a service to the other party. The fact is that a person who violates a contract should not be punished and the non-offending party should not be unfairly enriched.
Members of the Society have access to a journal in one of the following ways: Oxford Academic hosts a variety of products. The institutional subscription may not cover the content you are trying to access. If you think you should have access to this content, please contact your librarian. There are three types of equitable remedies: specific benefit, injunction and restitution. Many companies offer single sign-on between the company`s website and Oxford Academic. If a journal`s registration box says “Register via the company`s website”: If your institution is not on the list or you cannot register on your institution`s website, please contact your librarian or administrator. Access to content on Oxford Academic is often made possible through subscriptions and institutional purchases. If you are a member of an institution with an active account, you may be able to access the content in one of the following ways: The assessment of restitution interests can be problematic. Courts have considerable discretion in deciding either the cost of hiring another person to perform the work performed by the non-infringing party (usually the market price of the service) or the value added to the aggrieved party`s property as a result of the plaintiff`s performance. Calhoun, the contractor, agreed to build ten fences around Arlene`s area at a market price of $25,000. After building three, Calhoun provided services that would cost $7,500 in market value. Let us assume that it increases the value of the Arlene site by $8,000.
If Arlene resigns, there are two criteria for Calhoun`s restitution interest: $8,000, the value by which the property was improved, or $7,500, the amount it would have cost Arlene to hire someone else to do the job. The measure used depends on who terminated the contract and why. In some cases, improved valuation of goods or assets could result in an award that far exceeds the market price for the service. In such cases, the smallest measure is used. For a physician performing life-saving surgeries on a patient, reimbursement would only recover the market value of medical services – not the monetary value of the patient`s life. Typically, access to a range of IP addresses is provided through an institutional network. This authentication is automatic and you cannot log out of an IP-authenticated account. Once students understand the basic idea of a particular achievement, they often want to jump into it to resolve almost any breach of contract. It seems reasonable that the non-offending party could ask a court to simply compel the promisor to do what he promised. However, a certain service is a very limited recourse: it is only possible to sell a single object in case of breach of contract, i.e.
a single personal property (the samovar) or land (all real estate is unique). But if the item is not unique, so that the non-infringing party can go out and buy another one, then the action for monetary damages will solve the problem. And a certain service will never be used to force a person to provide services against their will, which would be involuntary servitude. A person may be forced to stop doing what they should not do (injunction), but not be forced to do what they will not do. Select this option to get remote access when you are away from your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution`s website and Oxford Academic. An injunction is the second type of equitable relief available in the contract (it is also available in tort liability). It is a court order that orders a person to refrain from doing what they should not do. For example, if an employer has a valid non-compete obligation with an employee and the employee nevertheless agrees to compete with his former employer in breach of this contract, a court may order (issue an injunction) ordering the former employee to terminate that competition. A person`s promise not to do something—not to compete in this example—is called a negative covenant (a covenant is a promise in a contract, even a contract). Or if the seller promises to give the buyer the right of first refusal for a single piece of land or artwork, but the seller offers the thing to a third party in violation of a written promise, a court may prohibit the seller from selling it to the third party.
If a person violates a restraining order, they can be held in contempt of court and imprisoned for a period of time. Madison Square Garden v. Carnera Corporation, Section 16.6.3 “Injunctions and Negative Clauses,” is a classic case involving breach of contract injunctions. A personal account can be used to receive email notifications, save searches, purchase content, and activate subscriptions. If you do not have a club account or have forgotten your username or password, please contact your club. A party who has provided a substantial performance and subsequently violated is entitled to reimbursement of any performance awarded to the injured party if the injured party has refused (albeit justifiedly) to perform his own performance because of the damage caused to the other party. Since the breaching party is liable to the injured party for damages, this rule applies only if the benefit granted is greater than the amount lost by the non-breaching party. Arlene agreed to sell her property to Calhoun for $120,000, and Calhoun made a payment of $30,000. Then he refuses. Arlene turns around and sells the property to a third party for $110,000. Calhoun – the injured party – can get his money back, minus the damage Arlene suffered as a result of his violation. He receives $30,000 less Arlene`s $10,000 loss.
He receives compensation of $20,000. Otherwise, Arlene would be enriched by Calhoun`s violation: she would receive a total of $140,000 for $120,000 in real estate. But if he gets $20,000 back of his $30,000, she gets $110,000 from the third and $10,000 from Calhoun, so she gets a total of $120,000 (plus, hopefully, at least accidental damage).