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McGill Faculty of Law
Smith, Stephen A.

A. Introduction

I. Definitions and Organisation

1. What is remedies about?
1.1. The under-discussed and very common-lawy law of court orders
Remedies is a class about courts orders(e.g., order to perform, order to pay damages, order not to trespass, declaration of trust). Relatively little has been written on the topic and it’s a very common law topic. It seems strange (to SS anyways) that there be no real classification of remedies when they are this important in the organisation of the writ system. SS thinks this may be explained by the fact that the classifications of common law where mostly made by Blackstone who drew a lot on French law, where there is no law of remedies, most probably because whereas the common law is a practitioner’s affair, the civil law is “made” by doctrinal authors for whom only the substance matters.
SS: sure, this might explain some things, but can it account for the absolute lack of books on remedies? Some (common law) authors suggest it’s because the law of remedies is a sham because all court orders replicate rights given by contract, the law of torts, etc. On this view, you get a court order for breach of contract because of the rights given to you by the contract; you get to be reimbursed because no one has the right to be unjustly enriched, etc. It’s a very substantive approach (akin to the French one). But SS thinks it would be unduly restrictive and even perhaps absurd to say that remedies are always pre-existing orders.
We’ll see a bunch of examples where the court does not replicate the order (e.g. specific performance being replaced so often by damages, see p. 31), but it also works the other way around: prescription doesn’t trump the right, only the order (i.e. the obligation still exists and if the would-be defendant pays up, no restitution is possible and the would-be plaintiff doesn’t have to disgorge). Also, if the duty is not only to stop trespassing but also to give damages for pass trespasses, there’s a new obligation added to the respect of property one. And what about punitive damages? If it’s true that one may pay damages for breach of contract in the absence of a court order, no defamer will pre-punish themselves (this also explains why some people are so against punitive damages[1]) or nominal damages (i.e. a public declaration of wrongness where no damage has occurred). Finally, note that in Australia, where the courts are really strong on discretion, the court can order whatever it wants[2].

So one of the questions in this class is: when do courts replicate existing duties and when do they create new ones?

1.2. The law of remedies as public law
On a certain view, while the law of remedies seems to be private law because the rights that are vindicated arise between individuals in private law contexts (contracts, torts, etc.), it is really public law in the sense that the remedies are about the right of the individual against the Court/State and its agents, the right of private parties to ask a part of the public system to vindicate its rights, give them what they are entitled to.

2. Organisation
2.1. SS’s OR, RR, COR

Stephen Smith, “Court orders” [excerpt from proposal] Why a project on court orders? Concluding step of the legal process, courts orders are the most tangible product of our court system. Also, the rules are known but there has been no systematization of the topic, it is scattered in various substantive law pieces. Three reasons for classification: (1) court-orders are a distinct body of law[3]; (2) importance of remedies in law (it’s the force of the state in a private dispute); (3) lack of knowledge; lack of clarity (it was filled in the C19 with the forms of action).
In the end, SS hopes to produce a monograph with three primary aims: (1) define the subject-matter; (2) create a framework (when do courts make orders, when do they not replicate the ordinary right?); (3) apply the framework to court orders (instead of replicating the traditional classifications, legal provenance (e.g. “Equity/Law”), cause of action (e.g. “contract/tort”), and purpose (e.g. “compensation/punishment”), orders will be classified primarily on the basis of their relationship to the parties‘ pre-existing rights).

For our purposes, we will speak of three kinds of rights. First, the
· Ordinary (substantive) rights: these are the rights between two persons, the rights against other individuals, it is the private law rights, the rights of duties. Examples could be: the right to have a debt paid or the right not to be defamed. [primary rights] o Personal rights: rights against another(specific) person (e.g. contractual rights)
o Proprietary rights: erga omnes rights (not necessarily property)
· Remedial rights[4]: these are the individual’s rights against the courts, or rather, that the court make a certain order, for instance, the right to compensation.
· Court-ordered substantive rights: these rights are the new rights created by courts, sometimes they mirror substantive rights (e.g. specific performance), sometimes they don’t (e.g. punitive damages). [secondary rights] o We will be discussing rights and remedies on two axes: the existence of the right and its content. The existence, the availability of the court-ordered right is not justified by the mere existence of the ordinary right, it must always flow from the court itself (and, to a certain extent, the remedial rights); however, the content of the court-ordered right is function of its source, in order words, of the ordinary right[5].
o However and this is for SS very important, sometimes, the content of the court-ordered right is not exactly that of the ordinary right, i.e. there is a transformation. For instance, a defamer might be ordered to compensate the defame and to pay punitive damages.

2.2. Birks and SS: rights, wrongs and remedies.

Birks (Peter), “Introd

when and on what grounds courts will make orders that either confirm pre-existing rights (e.g. the return of money paid by mistake), transform existing rights (e.g. by awarding a victim of a contract breach money to obtain an alternative performance), or create new rights (e.g. to a payment of punitive damages). This is “remedial” law as opposed to “substantive” law. Substantive law establishes the rights that individuals have against other individuals either prior to going to court (“pre-existing” rights) or after court orders are made (“court-ordered” rights). Remedial law establishes rights to court orders. These two categories of rights demand different explanations. The conclusion that a plaintiff has a pre-existing substantive right to delivery of a car (say because of a contract) does not tell us what a court should do if this right is infringed.»

[4] Should they really be called rights? He doesn’t care.

[5] Like contracts, you can’t really make one by accident (you change legal rights, etc.), they are “juridical acts”. However, there are no legal rules about why contracts should be made (we have rules on how, but otherwise, the people decided) whereas the reason for court orders is remedial rights.

[6] Unless otherwise indicated, passages in dark red come from Yemeni’s summary, based on one credited to “Noah”.

[7] What a Civilist turn of phrase.

[8] Could be an easy difference between public and private law.

[9] SS thinks this is very wrong and that rights are one of the main causes; Birks disagrees: following the Romans, Birks would say that, strictly speaking, there is no legal right to be injured: simply because you can’t prohibit someone from committing battery or negligence (oh so no Civilist). SS thinks its incorrect because: how is a wrong a wrong if there is no right? SS thinks you could just not align rights and court orders.

[10]But isn’t the wrong to refuse to give the money back rather than the breach the contract? It is true to say that the content of the court-order sometimes replicates a duty that arose from a non-wrong, but it seems misleading (because there’s a wrong). It’s the difference between enforcing a right and correcting a wrong.
As for Birks, let’s note that he was working of UE, where as soon as the money is deposited in the wrong account, there’s a wrong.