An Introduction to Remedies

• Author: Franklin G. Snyder, Mark Edwin Burge
• Pages: 476-477

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476 CHAPTER VIII: REMEDIES

An Introduction to

REMEDIES

We now turn to one of the most important practical questions that you and

your clients will face. Let’s assume we have a contract, there are no valid defenses,

we understand what each party is supposed to do, we have a breach, and the breach

is unexcused. That leads to one big question that your clients will want you to answer

. . . .

So what?

In other words, what is it your client will be entitled to? Clients generally do

not bring breach of contract suits to vindicate some moral or philosophical principle.

They bring them to get something, usually money, from the other party. They want

a remedy. If a client is unlikely to be able to get a valuable remedy—or if the remedy

will be unenforceable because the other party is broke—the contract dispute is likely

a waste of time. Thus, while we believe all of the rest of the course is important (or

we wouldn’t be covering it), the question of damages is the one that, in practical

terms, is perhaps the most important and the most ubiquitous. The client usually

does not care that it can prove breach of contract if there is no commensurate

remedy—the metaphorical pot of gold at the end of the contract litigation rainbow—

for doing so. Not every contract suit will involve questions of consideration, formation,

contract defenses, or other issues, but virtually every contract dispute will involve

the question: What should the plaintiff get?

Types of Remedies. Three broad general categories of remedies are available

in a claim for breach of contract. Any of the remedies may be available in any given

dispute, but a party can normally only get one. Knowing which one to seek and how

to prove it is critical for a successful business litigator.

The first type is money damages. The goal is to make the injured party whole

by providing a sum of money to compensate the plaintiff. There are, as it happens,

also three types of money damages, what we call the expectation, restitution, and

reliance measures. Exactly what each of those terms mean, and how they are used,

will have to be explored in some detail. Money damages are by far the most commonly

granted remedies in the United States.

The second is liquidated damages. In other words, damages that the parties

have agreed in advance that they would pay if the contract were breached. Just as

the parties can agree on other terms of their agreement, they can, within some

important limits, provide their own remedies. Understanding the limits, however,

requires some study.

The third is specific performance, which essentially is an order from a court,

very much like an injunction, compelling a party to do what it was supposed to do. In