Rights, Remedies, and Causes of Action
Stephen A. Smith
McGill University - Faculty of Law
February 16, 2009
STRUCTURE AND JUSTIFICATION IN PRIVATE LAW: ESSAYS FOR PETER BIRKS, C. Rickett, R. Grantham, eds. pp. 405-421, Hart Publishing, 2008
This paper argues that to understand court orders (e.g., injunctions, specific performance, orders to pay damages, etc.) it is necessary to distinguish clearly between their content and their existence. The reasons that justify the content of a court order are different from the reasons that justify making an order at all. In terms of their content, many court orders merely confirm duties that arise from non-wrongs, such as the non-wrong of making a contract or receiving a mistaken payment. The duties recognized in such orders (e.g., to pay a contractual debt, to return a mistaken payment) are not duties to remedy wrongs; they are duties not to commit wrongs. In this respect, Peter Birks was correct to query the practice of describing court orders as remedies. But in terms of the reasons for making court orders, an examination of the most important categories of orders shows that they are not made except on proof of an actual or imminent wrong. In this respect, it is correct to say, with Blackstone (and against Birks), that court orders are remedial, even when the duties they enforce arise from a non-wrong. The general theme of the essay, therefore, is the importance of understanding both why courts order defendants to do or not do particular things and (what is a different issue) why courts agree to make orders at all.
Number of Pages in PDF File: 15
Keywords: remedies, court orders, contract, tort, unjust enrichment
JEL Classification: K00, K10, K40Accepted Paper Series
Date posted: February 19, 2009 ; Last revised: March 4, 2009
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