Legal remedy

A legal remedy, also 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, imposes a penalty, or makes another court order to impose its will.

In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy available in these systems is declaratory relief, where a court determines the rights of the parties to an action without awarding damages or ordering equitable relief.

In English and American jurisprudence, 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: "It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress."[1][2]

Types in common law systems

There are three crucial categories of remedies in common law system. One is from the law courts of England, and is seen in the form of a payment of money to the victim. This payment is commonly referred to as damages. Compensatory damages compensate an injured victim or plaintiff, and punitive damages punish someone who because of fraud or intentional conduct, is deemed to deserve punishment. Punitive damages serve the function in civil law that fines do in criminal law.

The second category of remedy comes from the equitable jurisdiction developed in the English Court of Chancery and Court of Exchequer. The injunction is a type of equitable remedy,[3] as is specific performance, in which someone who enters into a contract is forced to perform whatever promise has been reneged upon. Two additional equitable remedies are the equitable lien and the constructive trust.

The third broad group is declaratory remedies. Common examples are the declaratory judgment and the action to quiet title, and these remedies usually involve a court's determination of how the law applies to particular facts without any command to the parties.[4] 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.[4]

While those are the 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).

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 the particular case.[5]

Examples

Categories

References

  1. ^ 1 William Blackstone, Commentaries on the Laws of England 23
  2. ^ See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162–163 (1803).
  3. ^ Douglas Laycock, The Death of the Irreparable Injury Rule (Oxford Univ. Press 1991).
  4. ^ a b Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review. 77: 1275, 1281. SSRN 1483859.
  5. ^ Bray, Samuel L. (2012). "Announcing Remedies". Cornell Law Review. 97. SSRN 1967184.
Adequate remedy

An adequate remedy or adequate remedy at law is a legal remedy (either court-ordered or negotiated between the litigants) which the court deems satisfactory, without recourse to an equitable remedy.This consideration expresses to the court whether money should be awarded or a court order should be decreed. Whether legal damages or equitable relief are requested depends largely on if the remedy can be valued. As an operation of law, an attorney often must present to the court whether there is an adequate remedy. This would be a basic principle of equity.For example, a neighbor building on a landowner's parcel would have little or no value that can be paid because land is unique, and an inadequate value could be ascertained; contrast this, for instance, with the neighbor borrowing the landowner's car and being 100% at fault for an accident. In the latter case, the valuation of the car plus other consequentially- caused damages can be reasonably valuated.

Therefore, as a general rule, where the fair market value can readily be assessed, with certain carved exceptions, the remedy at law is damages (or money). Whereas, the "inadequacy" of a remedy at law leads a lawyer usually to seek equitable relief from the court. When damages, a monetary award, is not an adequate or appropriate remedy, equity can order a "specific performance", an order of the court requiring a party to perform the obligations that he or she undertook to perform under the contract, especially where what was to be exchanged under contract can not be found easily elsewhere or at all, such as antiques, parcels of land, etc.

There is no such claim as an adequate relief claim. Damages are often bifurcated or determined in a separate trial or as a part in parcel of different determination from whether a certain tort or contract (etc.) has occurred.

Charles Runnington

Charles Runnington (1751–1821), serjeant-at-law, born in Hertfordshire on 29 August 1751 (and probably son of John Runnington, mayor of Hertford in 1754), was educated under private tutors, and after some years of special pleading was called to the bar at the Inner Temple in Hilary term 1778. He was made serjeant-at-law on 27 November 1787, and held for a time the office of deputy-judge of the Marshalsea Court. On 27 May 1815 he was appointed to the chief-commissionership in insolvency, which he resigned in 1819. He died at Brighton on 18 January 1821. Runnington married twice—in 1777, Anna Maria, youngest sister of Sir Samuel Shepherd, by whom he had a son and a daughter; secondly, in 1783, Mrs. Wetherell, widow of Charles Wetherell of Jamaica. His only son, Charles Henry Runnington, died on 20 November 1810.

Runnington, besides editing certain well-known legal works by Sir Geoffrey Gilbert, Sir Matthew Hale and Owen Ruffhead was author of A Treatise on the Action of Ejectment (founded on Gilbert's work), London, 1781, 8vo, which was recast and revised as The History, Principles, and Practice of the Legal Remedy by Ejectment, and the resulting Action for Mesne Profits (London, 1795, 8vo; 2nd ed.) published by William Ballantine in 1820.

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 of the society and state without discrimination or repression.

Civil rights include the ensuring of peoples' physical and mental integrity, life, and safety; protection from discrimination on grounds such as race, gender, sexual orientation, national origin, color, age, political affiliation, ethnicity, religion, and disability; and individual rights such as privacy and the freedom of thought, speech, religion, press, assembly, and movement.

Political rights include natural justice (procedural fairness) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.

Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social, and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be "first-generation rights", and the theory of negative and positive rights considers them to be generally negative rights.

Court

A court is any person or institution with authority to judge or adjudicate, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all people have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.

The system of courts that interprets and applies the law is collectively known as the judiciary. The place where a court sits is known as a venue. The room where court proceedings occur is known as a courtroom, and the building as a courthouse; court facilities range from simple and very small facilities in rural communities to large buildings in cities.

The practical authority given to the court is known as its jurisdiction (Latin: jus dicere') – the court's power to decide certain kinds of questions or petitions put to it. According to William Blackstone's Commentaries on the Laws of England, a court is constituted by a minimum of three parties: the actor or plaintiff, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction for it, and the judex or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain and by its officers to apply a legal remedy. It is also usual in the superior courts to have barristers, and attorneys or counsel, as assistants, though, often, courts consist of additional barristers, bailiffs, reporters, and perhaps a jury.

The term "the court" is also used to refer to the presiding officer or officials, usually one or more judges. The judge or panel of judges may also be collectively referred to as "the bench" (in contrast to attorneys and barristers, collectively referred to as "the bar"). In the United States, and other common law jurisdictions, the term "court" (in the case of U.S. federal courts) by law is used to describe the judge himself or herself.In the United States, the legal authority of a court to take action is based on personal jurisdiction over the parties to the litigation and subject-matter jurisdiction over the claims asserted.

Damnum absque injuria

In law, damnum absque injuria (Latin for "loss or damage without injury") is a phrase expressing the principle of tort law in which some person (natural or legal) causes damage or loss to another, but does not injure them. For example, opening a burger stand near someone else's may cause them to lose customers, but this in itself does not give rise to a cause of action for the original burger stand owner.

De homine replegiando

De homine replegiando (literally "personal replevin") is a legal remedy used to liberate a person from unlawful detention on bail, "with a view try the question of the validity of the law under which he is held in confinement."It is the oldest common law freedom writ.

Ex turpi causa non oritur actio

Ex turpi causa non oritur actio (Latin "from a dishonorable cause an action does not arise") is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act. Particularly relevant in the law of contract, tort and trusts, ex turpi causa is also known as the illegality defence, since a defendant may plead that even though, for instance, he broke a contract, conducted himself negligently or broke an equitable duty, nevertheless a claimant by reason of his own illegality cannot sue. The UK Supreme Court provided a thorough reconsideration of the doctrine in 2016 in Patel v Mirza.

Injunctions in English law

Injunctions in English law are a legal remedy of three types. Prohibitory injunctions prevent an individual or group from beginning or continuing an action which threatens or breaches the legal rights of another. Mandatory injunctions are rarer and compel a person to carry out a certain act such as make restitution to an injured party. Freezing injunctions relate to funds such as bank accounts and are commonly Mareva Injunctions which are sought mainly in fraud, breach of trust and confiscatory proceedings. Injunctions are most common in cases involving significant matters of nuisance, privacy and libel (reputational damage); they are relatively common remedies in major employment/agency/distribution, trust and property disputes, especially interim, interlocutory injunctions pending settlement or final hearing, whichever is the earlier where there is a clear and present danger that the matter in dispute between the parties will be wholly frustrated (such as irretrievably removed outside of the jurisdiction) if the injunction is not imposed. A final hearing only may impose a final injunction which may be equivalent to undertakings given in a legally binding settlement document.

Marbury v. Madison

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

The case originated from the political and ideological rivalry between outgoing U.S. President John Adams, who espoused the pro-business and pro-national-government ideals of Alexander Hamilton and the Federalist Party, and incoming President Thomas Jefferson, who led the Democratic-Republican Party and favored agriculture and decentralization. Adams had lost the U.S. presidential election of 1800 to Jefferson, and in March 1801, just two days before his term as president ended, Adams appointed several dozen Federalist Party supporters to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters in the Democratic-Republican Party. The U.S. Senate quickly confirmed Adams's appointments, but upon Jefferson's inauguration two days later, a few of the new judges' commissions still had not been delivered. Jefferson believed the commissions were void because they had not been delivered in time, and instructed his new Secretary of State, James Madison, not to deliver them. One of the men whose commissions had not been delivered in time was William Marbury, a Maryland businessman who had been a strong supporter of Adams and the Federalists. In late 1801, after Madison had repeatedly refused to deliver his commission, Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.In an opinion written by Chief Justice John Marshall, the Court held firstly that Madison's refusal to deliver Marbury's commission was illegal, and secondly that it was normally proper for a court in such situations to order the government official in question to deliver the commission. However, in Marbury's case, the Court did not order Madison to comply. Examining the law Congress had passed that gave the Supreme Court jurisdiction over types of cases like Marbury's, Marshall found that it had expanded the definition of the Supreme Court's jurisdiction beyond what was originally set down in the U.S. Constitution. Marshall then struck down the law, announcing that American courts have the power to invalidate laws that they find to violate the Constitution. Because this meant the Court had no jurisdiction over the case, it could not issue the writ that Marbury had requested.

Petitioner

A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition.

Pittura infamante

Pittura infamante (pronounced [pitˈtuːra iɱfaˈmante]; Italian for "defaming portrait"; plural pitture infamanti) is a genre of defamatory painting and relief, common in Renaissance Italy in city-states in the north and center of the Italian Peninsula during the Trecento, Quattrocento, and Cinquecento. Popular subjects of pittura infamante include traitors, thieves, and those guilty of bankruptcy or public fraud, often in cases where no legal remedy was available. Commissioned by governments of city-states and displayed in public centers, pittura infamante were both a form of "municipal justice" (or "forensic art") and a medium for internal political struggles.

According to Samuel Edgerton, the genre began to decline precisely when it came to be regarded as a form of art rather than effigy; the power of the genre derived from a feudal-based code of honor, where shame was one of the most significant social punishments. As such, pittura infamante has its roots in the doctrines of fama and infamia in ancient Roman law.

Plaintiff

A plaintiff (Π in legal shorthand) is the party who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal remedy; if this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an order for damages). "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exception being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant", but that term also has other meanings. In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

In some jurisdictions, a lawsuit is commenced by filing a summons, claim form or a complaint. These documents are known as pleadings, that set forth the alleged wrongs committed by the defendant or defendants with a demand for relief. In other jurisdictions, the action is commenced by service of legal process by delivery of these documents on the defendant by a process server; they are only filed with the court subsequently with an affidavit from the process server that they had been given to the defendant according to the rules of civil procedure.

Reparation (legal)

In jurisprudence, reparation is replenishment of a previously inflicted loss by the criminal to the victim. Monetary restitution is a common form of reparation.

In the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, reparation include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, whereby

Satisfaction should include, where applicable, any or all of the following: ..

(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;

(g) Commemorations and tributes to the victims;

(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.

23. Guarantees of non-repetition should include

(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;

Repossession

Repossession, colloquially repo, is a "self-help" type of action in which the party having right of ownership of the property in question takes the property back from the party having right of possession without invoking court proceedings. The property may then be sold by either the financial institution or third party sellers. The extent to which repossession is authorized, and how it may be executed, greatly varies in different jurisdictions (see below).

When a lender cannot find the collateral, cannot peacefully obtain it through self-help repossession, or the jurisdiction does not allow self-help repossession, the alternative legal remedy to order the borrower to return the goods (prior to judgment) is replevin.

The security interest over the collateral is often known as a lien. The lender/creditor is known as the lienholder.

Restitution

The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. When a court orders restitution it orders the defendant to give up his/her gains to the claimant. When a court orders compensation it orders the defendant to pay the claimant for his or her loss.

American Jurisprudence 2d edition notes:

The word "restitution" was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner and returning to the status quo but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. In summary, therefore, the word "restitution" means the relinquishment of a benefit or the return of money or other property obtained through an improper means to the person from whom the property was taken.

Restitution may be either a legal remedy or an equitable remedy, "depend[ing] upon the basis for the plaintiff's claim and the nature of the underlying remedies sought". Generally, restitution is an equitable remedy when the money or property wrongfully in the possession of defendant is traceable (i.e., can be tied to "particular funds or property"). In such a case, restitution comes in the form of a constructive trust or equitable lien.Where the particular property at issue cannot be particularly identified, restitution is a legal remedy. This occurs, for example, when the plaintiff "seeks a judgment imposing personal liability to pay a sum of money". Unjust enrichment and quantum meruit are sometimes identified as types of a disgorgement legal remedies.This type of damages restores the benefit conferred to the non-breaching party. Put simply, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract. There are two general limits to recovery, which is that a complete breach of contract is needed, and the damages will be capped at the contract price if the restitution damages exceed it.

The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment. However, the view that restitution, like other legal responses, can be triggered by any one of a variety of causative events is increasingly prevalent. These are events in the real world which trigger a legal response. It is beyond doubt that unjust enrichment and wrongs can trigger an obligation to make restitution. Certain commentators propose that there is a third basis for restitution, namely the vindication of property rights with which the defendant has interfered. It is arguable that other types of causative event can also trigger an obligation to make restitution.

Reverse domain hijacking

Reverse domain name hijacking (also known as reverse cybersquatting or commonly abbreviated as 'RDNH'), occurs where a rightful trademark owner attempts to secure a domain name by making cybersquatting claims against a domain name’s "cybersquatter" owner. This often intimidates domain name owners into transferring ownership of their domain names to trademark owners to avoid legal action, particularly when the domain names belong to smaller organizations or individuals. Reverse domain name hijacking is most commonly enacted by larger corporations and famous individuals, in defense of their rightful trademark or to prevent libel or slander.Reverse domain name "hijacking" is a legal remedy to counter the practice of domain squatting, wherein individuals hold many registered domain names containing famous third party trademarks with the intent of profiting by selling the domain names back to trademark owners. Trademark owners initially responded by filing cybersquatting lawsuits against registrants to enforce their trademark rights. However, as the number of cybersquatting incidents grew, trademark owners noticed that registrants would often settle their cases rather than litigate. Cybersquatting lawsuits are a defensive strategy to combat cybersquatting, however such lawsuits may also be used as a way of strongarming innocent domain name registrants into giving up domain names that the trademark owner is not, in fact, entitled to.

Vroegh v. Eastman Kodak Co.

Vroegh v. Eastman Kodak Company, et al. is a class action complaint that alleges that the defendants, "[i]n marketing, advertising and/or packaging their Flash Memory Cards and Flash Memory Drives, Defendants misrepresent the size of the memory storage contained in the Flash Memory Cards and Flash Memory Drives." The complaint accuses the defendants of "false advertising, unfair business practices, breach of contract, fraud, deceit and/or misrepresentation, and violation of the California Consumers Legal Remedy Act".

Warranty

In contract law, a warranty is a promise which is not a condition of the contract or an innominate term: (1) it is a term "not going to the root of the contract", and (2) which only entitles the innocent party to damages if it is breached: i.e. the warranty is not true or the defaulting party does not perform the contract in accordance with the terms of the warranty. A warranty is not guarantee. It is a mere promise. It may be enforced if it is breached by an award for the legal remedy of damages.

A warranty is a term of a contract. Depending on the terms of the contract a product warranty may run with a product so that a manufacturer makes the warranty to a consumer with which the manufacturer has no direct contractual relationship.

A warranty may be express or implied. An express warranty is expressly stated (typically written); whether or not a term will be implied into a contract depends on the particular contract law of the country in question. Warranties may also state that a particular fact is true at one point in time or that the fact will continue into the future (a "continuing warranty").

Writ of Kalikasan

A Writ of Kalikasan is a legal remedy under Philippine law that provides protection of one's Constitutional right to a healthy environment, as outlined in Section 16, Article II of the Philippine Constitution, which says the "state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." "Kalikasan" is a Filipino word for "nature".The writ is comparable to the writ of amparo and the writ of habeas corpus. In contrast, this writ protects one's right for a healthy environment rather than constitutional rights. The writ of kalikasan originated in thd Philippines, unlike the other two writs that have roots in European and Latin American law.

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