Equitable remedy

Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VII to provide more flexible responses to changing social conditions than was possible in precedent-based common law.[1][2]


Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable remedies have been merged and a single court can issue either, or both, remedies. Despite widespread judicial merger, the distinction between equitable and legal remedies remains relevant in a number of significant instances. Notably, the United States Constitution's Seventh Amendment preserves the right to a jury, trial rights in civil cases over $20 to cases "at common law".

The distinction between types of relief granted by the courts is due to the courts of equity, such as the Court of Chancery in England, and still available today in common law jurisdictions.[3] Equity is said to operate on the conscience of the defendant, so an equitable remedy is always directed at a particular person, and that person's knowledge, state of mind and motives may be relevant to whether a remedy should be granted or not.

Equitable remedies are distinguished from "legal" remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them. In common law jurisdictions, there are a variety of equitable remedies, but the principal remedies are:

  1. injunction[4][5]
  2. specific performance
  3. account of profits
  4. rescission
  5. declaratory relief
  6. rectification
  7. equitable estoppel
  8. certain proprietary remedies, such as constructive trusts[6]
  9. subrogation
  10. in very specific circumstances, an equitable lien[7]
  11. equitable compensation
  12. Appointment or removal of fiduciary
  13. Interpleader

The two main equitable remedies are injunctions and specific performance, and in casual legal parlance references to equitable remedies are often expressed as referring to those two remedies alone. Injunctions may be mandatory (requiring a person to do something) or prohibitory (stopping them doing something). Specific performance requires a party to perform a contract, for example by transferring a piece of land to the claimant. The award of specific performance requires that the two following criteria must be satisfied:[8] (i) Common law damages must be an inadequate remedy. For instance, when damages for a breach of contract found in favour of a third party are an inadequate remedy.[9] (ii) No bars to equitable relief prevent specific performance. A bar to relief arises for example, when the court's continuous supervision of the defendant is not feasible.[10]

An account of profits is usually ordered where payment of damages would still leave the wrongdoer unjustly enriched at the expense of the wronged party. However, orders for an account are not normally available as of right, and only arise in certain circumstances.[11]

Rescission and rectification are remedies in relation to contracts (or, exceptionally, deeds) which may become available.

Constructive trusts and tracing remedies are usually used where the claimant asserts that property has been wrongly appropriated from them, and then either (i) the property has increased in value, and thus they should have an interest in the increase in value which occurred at their expense, or (ii) the property has been transferred by the wrongdoer to an innocent third party, and the original owner should be able to claim a right to the property as against the innocent third party.

Equitable liens normally only arise in very specific factual circumstances, such as unpaid vendor's lien.

Equitable principles can also limit the granting of equitable remedies. This includes "he who comes to equity must come with clean hands" (i.e. the court will not assist a claimant who is himself in the wrong or acting for improper motives), laches (equitable remedies will not be granted if the claimant has delayed unduly in seeking them), "equity will not assist a volunteer" (meaning that a person cannot litigate against a settlor without providing the appropriate consideration e.g. Money) and that equitable remedies will not normally be granted where damages would be an adequate remedy. The most important limitation relating to equitable remedies is that an equitable remedy will not lie against a bona fide purchaser for value without notice.

Damages can also be awarded in "equity" as opposed to "at law",[12] and in some legal systems, by historical accident, interest on damages can be awarded on a compound basis only on equitable damages, but not on damages awarded at law.[13] However, most jurisdictions either have ended this anachronism, or evinced an intention to do so, by modernising legislation. Two versions of the legislation are in force in Australian jurisdiction with one version placing emphasis on "commission of a wrongful act" and the other omits the reference to wrongdoing.[14]

The classification of a remedy as equitable has various consequences. For example, equitable remedies may be enforced by contempt,[15] and equitable remedies are subject to equitable defenses.[16]

See also


  1. F W Maitland (1908). The Constitutional History of England. Cambridge University Press. pp. 221–226.
  2. Lord Denning (1979). The Discipline of Law. Butterworths. p. 197. ISBN 0406176051.
  3. See generally, Meagher and Gummow, Equity, Doctrines and Remedies, 3rd ed.
  4. In English law, see generally American Cyanimid Co v Ethicon [1975] AC 396
  5. See also, “Beecham Group Ltd v Bristol Laboratories Pty Ltd” [1968] HCA 1.AustLII
  6. See generally, Oakley, Constructive Trusts, 2nd ed.
  7. Giumelli v Giumelli (1999) 196 CLR 101.AustLII
  8. Bryan, Degeling, Donald and Vann, A Sourcebook on Equity and Trusts in Australia, Cambridge University Press pp. 24-31.
  9. See generally, Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR AustLII
  10. See, Co-operative Insurance Society Ltd v. Argyll Stores [1997] UKHL 17; [1998] AC 1 BAILII
  11. Goff & Jones, The Law of Restitution, 4th ed.
  12. Mcgregor on Damages, 17th rev ed.
  13. Westdeutsche v Islington BC [1996] AC 669
  14. See, Supreme Court Act 1970 (NSW) s 68 and Supreme Court Act 1986 (Vic) s 38. See also, Wentworth v Woollahra Municipal Council (1982) 149 CLR 672. AustLII
  15. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994).
  16. Bray, Samuel (2014). "A Little Bit of Laches Goes a Long Way: Notes on Petrella v. Metro-Goldwyn-Mayer, Inc.". Vanderbilt Law Review En Banc. 67: 1.
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