Remedies

- Insight into judge made law

- The law of Judicial Remedies (includes law of damages) ranges over the entire field of private law,
law of contract, tort and property.
Fuller and Purdue : - in the assessment of damages the law tends to be conceived not as a purposive
ordering of human affairs, but as a kind of juristic mensuration. The language of decisions sounds in
terms not of command but of discovery. We measure the extent of the injury, we determine whether it
was caused by the defendants act, we ascertain whether the plaintiff has included the same item of
damage twice in his complaint.
The selection of a remedy is not simply an automatic consequence of a finding of liability in a
lawsuit. There is much more room for judicial discretion and human choice in the determination
of the appropriate remedy.
The selection of remedies is every bit a part of the law's quest to do justice between the parties
as is the application of the substantive law.
The process of discovering remedies is the process of creating them , and the process of
measuring losses is actually the process of choosing and affirming human interests and values.
First part is principle of compensation, which is the primary function of the law of damages. Within
this part, there are separate chapters focusing on the way in which courts treat different interests:
economic,
proprietary,
physical and
intangible.
Part two then describes other non-compensatory functions of the law of damages, including:
restitutionary,
punitive, and
nominal damages.
Part three deals with limiting or balancing principles that protect the defendant from undue liability,
including :
rules regarding proof and certainty,
remoteness and
mitigation of damages.
The principles of remedial selection
Remedial Selection and measurement of damages are highly discretionary.
Civil causes of action present judges with range of acceptable remedies:
- choice between specific performance & damages
and then a range of choices regarding implementation of a remedy once chosen.
The selection of an appropriate remedy depends on judicial choices about which interests deserve
protection in the circumstances and how that protection may be balanced against competing interests
and policies.
balancing protection of the legitimate interests of the plaintiff and not unduly oppressing the

defendant or damaging other private or social interests that the law values.
Oppression of the defendant may arise from an inappropriate extent of liability or an undue
burden of damages that is disproportionate to the wrong that occured.
Where the defendant breaches a contract, the defendant is liable to pay a sum of money that
puts the plaintiff in the po+sition she would have been in had the contract been performed
(called Expectation Interest) . The Law has selected this as the most fair to the plaintiff and
most likely to facilitate private ordering in a free market economy.
In addition to the quest for justice between the parties there are considerations of 'legal justice'
or administrative efficiency and the occassional pursuit of social interests beyond the immediate
merits of the dispute between the parties.
Perfect compensation for the plaintiff will be sacrificed in order to achieve consistency,
predictability, and administrative ease. (e.g. Personal Injury Plaintiff entitled to lost future
wages without tax deduction Plaintiff would have had to pay on those wages. Even though this
may overcompensate the plaintiff, it has been justified as it would be speculative and costly)
Until recently courts would deny damages for emotional distress and disappointment in contract
cases. Contract law was confined to the protection of economic interests only. This view has
changed gradually and has been accepted that human relations in the marketplace may
encompass more than financial interests and the law of remedies has adapted to the new
perspective.
Remedial principles have adapted to protecting and valuing intellectual property
new forms of damage measurement for aesthetic and environmental harm have emerged in
response to these escalating social problems.
Also changing social attitudes towards the characteristics of the family, the economic interests
of 'mothers' and 'homemakers' and the nature of their loses when injured.
Good advocacy and effective law reform proceed from the liberating discovery that law, rather
than being timeless or preordained can in fact be changed to fit better the needs of the day.

The interests protected

First step in remedial choice is not measurement but selection of remedy.
the process of selection turns on choices about the interests to be protected or the purpose to be
pursued.
The courts look to different identifiable interests:
1. economic
2. proprietary
3. physical
4. and intangible
In addition it adopts a fourfold typology for organizing and explaining the different measures of
damages available.
1. Reliance Interest are backward looking. (avail as 2ndary remedy in contract cases, and
common remedy in tort cases) reliance damages aim to restore the Plaintiff any losses
suffered as a result of the D's breach of duty, measured by amount that will put the P in
the position he would have been had the wrong not occurred.
2. Restitution Interest also backward looking but focus on the Defendant's gain not P's

loss. Restitution damages are not strictly compensatory, cuz they are aimed at preventing
unjust enrichment resulting from wrongdoing. While they compensate the P for a loss
suffered the primary purpose is to strip the the defendant of any gains earned as a result
of the wrong. They are measured not by what the P has lost, but by the full amount of
the benefit obtained by the defendant as a result of the wrong.
3. Expectation Interest damages measured by expectation interest are forward looking
and aim to give the plaintiff something he never had but expected to recieve. (they are
primary remedy in BoC cases) Are designed to put the P in the position he would have
been in had the contract been performed.
4. Retribution Interest damages based on retribution have nothing to do with
compensation of the plaintiff. They are damages whose goal is to punish the defendant
or to deter certain conduct. They are available in a wide range of cases when, owing to
reprehensible nature of D's conduct, a court feels that an additional sanction should be
applied.
- Each of these types of damages protects a different interest and promotes a different form of justice.
Punitive damages promote retributive justice. Not only on the private interest of the wronged
plaintiff but more on the public interest in detering and punishing unacceptable behaviour.
Restitutionary damages : based on notion of corrective justice (should not profit from own
wrongdoing)
Reliance damages : based on form of corrective justice (Def's wrong has caused an imbalance
that must be corrected and Plaintiff restored to Status Quo)
Expectation damages based on distributive justice, they alter status quo, rather than restoring
the parties to earlier position, they redistribute the parties wealth according to their agreement.
E.g. A has a garage sale and finds an old rocking chair, and recalls being told it was a Royalty Rocker
and tags it and prices at $100. B sees the chair and knows that if it is a Royalty Rocker and was
restored it would fetch $500. She asks him if it is and he says yes. B offers A $80 and he accepts.
B takes chair home and spends 1 hour ($20 worth of pain stripper) to removing the paint and find its a
replica, and would only get $50 for it. She finds this before she had spent $100 on paint and materials.
Assuming that any remedy is warranted in this case (BOC or Negligent misrep):
Restitutionary damages: $30 (net benefit of the contract to Arnold since he sold the chair for $80 which
is only worth $50) , alternatively B may be entitled to $80 on condition that she return the chair.
Awarding this amount will strip A of his gain but will not fully compensate B as she spent $20 on
stripping the paint.
Reliance damages : $50 . B spent a total of $100 on the chair (purchase price plus paint stripper) and
was left with an asset worth $50. Her net loss is therefore $50. Giving B this amount will place her in
the position she was in before entering the contract. (although complicated by the fact she spent her
time, and may consider whether this might be compensated as part of her reliance claim).
Expectation damages : $350 Had everything proceeded as planned B would have earned a net profit of
$300 (B would have been worth $500 after expenditure of $200). B lost $50 on the transaction. In
order to put her in the position she would have been in had the contract been performed, it is therefore
necessary to give her $350 (again, the matter may be more complicated because B did not have to

spend her time restoring the chair, so it might be argued that she has been spared an 'expense'.
Punitive Damages: award beyond merely compensating B for her loss. It would be an amount awarded
on top of any compensatory sum to punish further the breach that occured.
While certain rights (e.g. Contract ) generally entail particular remedies (e.g. Expectation damages) the
court produces a remedy that is best tailored to the situation.
The remedy for BOC is ordinarily expectation damages. However a court might feel that it would be
unduly harsh to order A, an innocent vendor to pay $350 in damages as a result of a casual remark at a
garage sale. Could conclude that his statement was not intended to be a contractual guarantee. However
a court might believe that even though innocent, Arnold should not gain a profit on the basis of his
falsehood, in which case it might order him to make restitution to B of the money she paid for the chair
(based on inocent misrepresentation and permitting rescission of the contract).
Alternatively, the court might feel that it would be unfair to leave B with her out of pocket lossess as a
result of A and it might order reliance damages (on finding that there was a negligent
misrepresentation) in order to mend her loses.
If the court found A was not innocent and committed fraud a court might be inclined to award punitive
damages.
Esso Petroleum Co v. Mardon induced to lease a gas station by careless estimate of how many
gallons it would sell. After trying to make a go of it, he gave up and sued Esso. Court held that Mardon
wsa not entitled to the contractual measure of damages (expectation damages based on amount of profit
he would have made if the representation had been true), because it was not inclined to construe the
defendant's representation as a contractual guarantee to the purchaser. Instead he was awarded his
reliance damages, consisting of the amount of money he had invested and lost in the venture.
By awarding this sum, the P is put in the position he would have been had he never entered into the
business in the first place (not in the position he would have been in had the business performed as
promised) .
Courts way of striking a fair balance between interests of both parties. P should be compensated for the
losses he suffered as a result of the misrepresentation, but unfair to the D to find that the estimate of
volume of sales could be construed as a guarantee.
Bollenback v. Continental Casualty Co P paid insurance premiums for many years but when he
made a claim for an injury he was denied (error in company records) Instead of suing for his
expectation damages (amount of claim would have been $107), the P sued for the return of of all
premiums that he had paid, which was in excess of the claim itself.
Court permitted this claim on the basis of D's repudiation of the contract was wrongful and should not
be entitled to any gain as a result of its wrong.
Ordinarily, the appropriate remedy for BOC is expectation damages. Where the amount that the P has
paid for a service exceeds the value of that service, the P is not usually entitled to claim restitution of
the price when the D breaches cuz that would amount to a judicial reallocation of risk. However in this
case, the insurer did not simply breach but repudiated the contract, and the court permitted the P to
claim back the full amount paid.
Wrongful repudiation where courts award punitive damages to provide additional deterence in such
circumstances to make a large corporation accountable.
General Principles

BREACH OF CONTACT:
normal measure of damages for BOC is expectation measure (put the injured party in the position as
though the contract had been performed.
In rare cases , the law of contract permits recovery of reliance damages as an alternative, and in other
cases it may permit the recovery of the restitutionary amount . Punitive damages are seldom awarded in
breach of contract cases.
TORT :
normal measure of damages for tort law is restitution. P is entitled to be restored to the position she
would have been in had the tort never been committed. This is essentially the reliance measure of
damages. This does not mean P's in tort cases are never entitled to future benefits, as reliance damages
may include compensation for lost future opportunities.
Punitive damages are also available in tort law, as in some situations the courts feel merits additional
deterrence.
Limits on the award of Damages.
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undue burden of damage