Judicial remedies (2023):Equitable remedies + Specific performance

Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry the 8th to provide more flexible responses to changing social conditions than was possible in precedent-based common law.

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 in civil cases over $20 to cases "at common law".

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:

injunction,

specific performance,

account of profits,

rescission,

rectification,

equitable estoppel,

certain proprietary remedies, such as constructive trusts,

subrogation,

in very specific circumstances, an equitable lien,

equitable compensation,

appointment or removal of fiduciary,

Interpleader and

equitable tracing as a remedy for unjust enrichment.

Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court.

An injunction, often concerning confidential information or real property, is a type or subset of specific performance and is one of the more commonly-used forms of specific performance. While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction, but there are mandatory injunctions that have a similar effect to specific performance and these kinds of distinctions are often difficult to apply in practice or even illusory.

At common law, a claimant's rights were limited to an award of damages. Later, the court of equity developed the remedy of specific performance instead, should damages prove inadequate. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute.

As with all equitable remedies, orders of specific performance are discretionary, so their availability depends on its appropriateness in the circumstances. Such orders are granted when damages are not an adequate remedy and in some specific cases such as land (which is regarded as unique).