Unpacking The Enigma of Equitable Compensation for Breaches in Equity
Journal of Business Law
31 Pages Posted: 22 Jul 2021
Date Written: July 19, 2021
Amidst the relentless commercialisation of equity, the remedy of “equitable compensation” has taken centre stage in recent years. As more commercial disputes confront the courts, judges across various jurisdictions grapple with the enigma of “equitable compensation” to keep it apace with the modern times. The term “equitable compensation” has been used by the legal fraternity to refer to a remedy for loss regardless of the nature of the equitable obligation breached. However, coalescing all loss-based remedies into “equitable compensation” elides the nuances across different types of breaches. This article untangles the different types of breaches in equity, and argues that “equitable compensation” should only be a remedy for loss following a breach of fiduciary duty. To further unpack this remedy, the article proceeds to analyse the first step of its application - the causation requirement. This fundamental question has proven to be a divergent issue, with courts from various jurisdictions adopting different rules.
Keywords: Remedies, Equitable Compensation, Breach of Trust, Breach of Fiduciary Duty, Causation
JEL Classification: K10, K11, K19
Suggested Citation: Suggested Citation