Equitable Remedies

Contract Type:

The Parties acknowledge and agree that damages may not be an adequate remedy for any breach of this Agreement and that either Party shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this Agreement.


This clause provides for equitable remedies available to the parties as a result of any breach or threatened breach of the agreement by either party. Key points:  

1) Damages not adequate: The clause recognises that damages alone may not be sufficient to remedy any breach of the agreement in this case. Monetary damages often cannot adequately compensate loss and may be difficult to determine.

2) Additional remedies: In addition to damages, either party is entitled to equitable remedies for breach, including but not limited to:

- Injunctions to prevent any threatened breach or restrain further breach

- Specific performance to compel the breaching party to perform their obligations under the agreement

- Other equitable relief at the discretion of a court depending on the circumstances, e.g. rescission, declaratory judgement

3) Threatened or actual: The entitlement to equitable relief applies not only once a breach has occurred but if there is a threat of impending breach. This may allow for early intervention to avoid greater losses.

4) Either party: Both parties are equally entitled to pursue equitable remedies against the other in the event of breach or threatened breach. The rights are mutual and reciprocal.  

5) Breach of Agreement: The remedies provided apply where there is a breach or threatened breach of the agreement. They do not extend to any other act or omission by the parties beyond failing to perform obligations under their contract.

The key objectives and rationale for including an equitable remedies clause are:

1) Providing additional protections: Permitting access to equitable remedies in addition to ordinary damages helps ensure an effective remedy is available for breach in this case, especially where damages would be insufficient. This provides stronger assurance of compliance and recourse in event of issues.

2) Preventive intervention: Enabling action against threatened breach allows for prevention or mitigation where damages after the fact may be inadequate. This ability to restrain impending breach can avoid greater losses.

3) Mutuality of rights: Stating the entitlement to equitable relief applies equally to both parties prevents arguments around only one party having access. Mutual and reciprocal remedies help balance the relationship.

4) Aligning with intentions: Where equitable remedies like specific performance are suitable, they help uphold the parties' original intentions under their agreement. Damages alone may not achieve this. Access to discretionary remedies also allows for flexibility based on the situation.

5) Stronger enforcement: The potential for equitable intervention and relief, with their discretionary and flexible nature, provide a stronger mechanism for enforcing obligations under the agreement compared to damages alone. This should encourage compliance.

In summary, an equitable remedies clause allows for a range of more flexible and discretionary remedies to better uphold obligations under an agreement and provide effective recourse in event of issues. Permitting equitable relief in addition to ordinary damages aims to recognize where the latter may be inadequate, prevent further losses where possible, and align outcomes with the parties' intentions. The clause helps strengthen assurance of performance under the agreement through providing more potent and tailored means of enforcement and discouraging breach. Overall, it signals the seriousness with which compliance is viewed.

History of the clause (for the geeks)

Early common law confined remedies for breach of contract to damages, limiting options where harm exceeded financial loss. Equity courtsdeveloped to remedy unjust enrichment and address inadequacies of common law. By the 16th century, equity allowed injunctions against breach and orders for specific performance. However, equity was discretionary, and specific performance was only for land contracts, not commercial deals.

The 1867 Judicature Acts merged courts of common law and equity in England, but distinctions persisted. Cases affirmed specific performance was not absolute but discretionary based on adequacy of damages and hardship of enforcement. Contracts began expressly providing for equitable relief to strengthen obligations, especially given limitations of injunctions and specific performance. But approaches were ad hoc, and courts resisted derogation of equitable discretion or "ouster of jurisdiction".

By the 19th century, boilerplate clauses provided for injunctions, specific performance and "other relief" for any breach. However, English courts avoided interpreting these as limiting discretion or implying absolute rights. Specific performance remained confined to land. In the U.S., equity was more liberally applied but still discretionary. Attempts in contracts to make its application mandatory were resisted. Injunctions were more commonly granted but subject to discretion and considerations of balance of convenience.

In the early 20th century, courts acknowledged contracts could guide but not remove equitable discretion. "Ouster clauses" were invalid but indicating factors relevant to discretion was permitted. Specific performance was more widely applied to commercial deals but remained a discretionary remedy, despite contract terms. However, where discretion was likely to be exercised in favor of equitable relief, advance notice in contracts could strengthen deterrent effect.

Today, equitable remedies clauses are common but discretion remains. Courts may consider adherence to normal principles inappropriate where it would sanction clearly unreasonable or oppressive conduct, regardless of contract terms. However, outlining factors that weigh in favor of relief can support applications. Injunctions are more readily available, especially if less onerous options are exhausted first. Specific performance is common for "unique" goods or where damages are inadequate but still weighed against hardship, even if contractually stipulated.

In summary, the trend has been toward more frequent equitable intervention and respecting parties' intentions in commercial agreements. However, discretion has endured as an underlying principle. While standard relief clauses signal the likelihood of equity if needed and highlight its deterrent role, courts continue balancing fairness, reasonableness and proportionality over adherence to strict rights.

Overall, equitable doctrines and remedies have become key tools for overcoming limitations of common law and achieving just outcomes, especially for complex commercial disputes, but their application remains subject to guiding principles of ethics and conscience, regardless of attempts to mandate through contract terms alone.