Distinguish legal rights from equitable rights and outline the main equitable remedies available to an aggrieved party
ANSWER
| Legal rights | Equitable rights |
| These are rights which originally could only be enforced by the common law courts. | These rights were originally enforceable by the Lord Chancellors Courts. |
| These rights are enforceable as of right i.e. once an infringement is established the aggrieved party is entitled to damages, for example breach of contract. | The enforcement of these rights is discretional i.e. it is for the court to determine whether or not the remedy sought will be availed e.g. rights of trustees or beneficiaries. |
The main equitable remedies include:
- Injunction: this is an order of the court which restrains a person from doing or continuing to do a particular thing or compels him to undo what he has wrongly done. May be temporal or perpetual.
- Specific Performance: this is a court order which compels a party to perform its contractual obligations as agreed. It compels a party to honour its part of the contract without an option to pay damages.
- Rescission: the essence of this remedy is to restore parties to a contract to the position they were before the contract.
- Account: this is generally an exposition of the utilization of money or goods coming into the hands of a person in a specific capacity e.g. agent, trustee or promoter. It entails the handing over of anything obtained in a manner inconsistent with the position e.g. secret profit.
- Tracing: this is a court order which enables a party to follow and recover assets or monies which change hands in certain circumstances for example: void contracts. The remedy is generally available only if the subject matter or its application is identifiable.
- Winding Up: is the legal process by which a company‟s existence is brought to an end, its assets realized, liabilities ascertained and paid and the balance if any distributed between the members.
- Appointment of Receiver: this is a person appointed by a debenture holder or the court at the instigation of a creditor to take over the borrowers security to facilitate payment of the amount owing.
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