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27 Man. L.J. 185 (1999-2000)
The Breakdown of Hierarchy: Damages at Law versus Damages in Equity

handle is hein.journals/manitob27 and id is 193 raw text is: The Breakdown of Hierarchy: Damages at Law versus Damages in Equity JESSICA FREIHEIT* I. INTRODUCTION D AMAGE THEORY SEEKS TO PUT THE COMPLAINING PARTY in the position he or she would have been in had the contract been performed. Where dam- ages are inadequate to do so, an award of specific relief' may be sought. Fur- ther, subject to a court's discretion, damages in lieu of that specific relief may be awarded. From this process, a host of complications arise. One begins by asking: what is the inadequacy of the common law that led to specific relief? and, does the damage in lieu of specific relief remedy that inadequacy? This second ques- tion must follow if damages in substitution for specific performance are to pro- vide the plaintiff an equivalent protection. Early on one finds that the inquiry itself is tenuous. Firstly, what does in- adequate mean? If there are varying notions of inadequacy, there may follow varying measures of the damage designed to repair those inadequacies. Sec- ondly, why is an equitable remedy premised on the inadequacy of common law damages? Is this an accurate way to understand the role of equitable damages? The question of whether specific relief, or damages in lieu thereof, repairs the inadequacies of the common law is based on an hierarchical approach to the available remedies. It presents specific relief as having been introduced only af- ter common law damages have proven inadequate. However, this hierarchical approach may not underlie all the decisions on equitable damages. Rather, the courts may, in some cases, be applying a non-hierarchical evaluation of which damage award is most appropriate, without first considering whether common law damages are adequate. If this is the case, the question of whether equitable damages remedy the inadequacy of common law damages loses significance. Student, Faculty of Law, McGill University. B.C.L./LL.B. Candidate, 2001. The author would like to thank her parents, brothers and grandmother for challenging and supporting her throughout. The terms specific relief and specific performance are used interchangeably.

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