REMEDIES AS A LEGAL SUBJECT

Abstract

There has been in recent years a growing interest in the subject of remedies. Several universities offer courses in it. Many articles by lawyers and economists have appeared. New Zealand has enacted a statute entitled the Contractual Remedies Act 1979, on which the present commentary has been written by Dawson and McLauchlan. Other recent books include Beale's Remedies for Breach of Contract (1980), Lawson's Remedies of English Law (2nd ed., 1980), Spry's Equitable Remedies (2nd ed., 1980) and, in Scots law, Walker's Civil Remedies (1974)It is apparent from an examination of these books that the scope and meaning of this legal subject area is by no means settled. Professor Walker says in his preface that no authority has tried to define or delimit 'remedies'.' Theoretically, almost every legal question could be posed in terms of remedies, but this would give the word so wide a meaning as to be useless. When reference is made by a writer to the virtues of studying the subject of remedies as a whole, the meaning of the word is evidently being restricted. If the subject has coherence, as is often claimed, there must be a unifying theme. The whole cannot be worth looking at unless the parts have some connection. Lawson's book gives the subject a very wide range, including administrative law, matrimonial law and company law. The aim of the book is stated in the preface to be to set out what redress a person can obtain. An American book, published in 1974, Dobbs' Handbook on the Law of Remedies, includes the law of restitution. It is true that restitution can be a means of giving redress for a legal wrong, but most would consider that it is primarily an independent source of legal obligation, distinct from tort and contract, depending on avoidance of unjust enrichment. This view, supported by textbooks in England2 and the United States,3 though not yet fully accepted by the House of Lords,4 is now established in Canadian law.5 Dawson and McLauchlan have written a detailed commentary on the New Zealand Contractual Remedies Act. The commentary is of a high standard and