Distinguish legal rights from equitable rights and outline the main equitable remedies available to an aggrieved party

a) Law of Contract: is concerned with rights, duties and remedies of parties to a contract. It defines a contract, prescribes its elements identifies its terms and their effect and lays out the vitiating elements. It prescribes how a contract may come to an end and sets out remedies.
b) Law of Torts: is concerned with violations of personal and proprietary rights and prescribes remedies to aggrieved parties. It identifies what acts or omissions amount to torts
E.g. negligence nuisance, defamation, passing off, trespass to goods, detinue conversion, assault, battery, false imprisonment etc. It also describes certain principles e.g. strict liability, vicarious liability, occupier’s liability etc.
c) Law of Marriage: is concerned with the various ways of contracting a valid marriage, rights and duties of the spouses and divorce.
d) Law of Succession: is concerned with the disposition of a deceased’s estate. It provides for wills, dependants gifts in contemplation of death, intestate succession and probate.
e) Law of Property: is concerned with interest in land e.g. primary and secondary interest e.g. freehold and leasehold estates in land, servitudes and encumbrances. It defines the ways of acquiring interest in land and its extinguishment. It prescribes the rights and duties of persons who have an interest in land.
f) Law of Trust: is concerned with the rights, duties and other incidences between trustees and beneficiaries.
Legal rights Equitable rights
These are rights which originally could only be enforced by the common law 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. These rights were originally enforceable by the Lord Chancellors Courts.
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 honor 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 money 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.

Share through

Leave a Reply

Your email address will not be published. Required fields are marked *