Foundations of Remedial Justice
The hallmark of a civilized legal system is not merely the declaration of rights, but the robust enforcement of those rights when they are violated.
Rights Must Be Enforceable
At the heart of jurisprudence lies the transformative principle that a legal right is a hollow promise unless it is coupled with a mechanism for repair.
The Maxim: Ubi Jus, Ibi Remedium
This article explores the foundational maxim Ubi Jus, Ibi Remedium, categorizes the diverse remedies available to an aggrieved party, and provides a comparative analysis of how the law compensates for wrongs in both Tort and Contract.
Scope of Legal Remedies
- Identification of enforceable legal rights
- Availability of remedies when rights are violated
- Mechanisms for legal repair and compensation
Comparative Analysis: Tort and Contract
| Aspect | Tort | Contract |
|---|---|---|
| Nature of Wrong | Violation of a legal duty imposed by law | Breach of obligations voluntarily undertaken |
| Purpose of Remedy | Compensation for harm suffered | Placing the aggrieved party in the position promised |
I. Amplifying the Principle: “Every Damage or Injury Must Have a Remedy”
The legal maxim “Ubi jus, ibi remedium” literally translates to “Where there is a right, there is a remedy.” This principle suggests that if a person’s legal right is infringed, the law provides a means to vindicate that right.
The Essence of the Maxim
It is crucial to distinguish between a “moral wrong” and a “legal injury.” The law does not provide a remedy for every annoyance or financial loss (known as Damnum Sine Injuria). However, when a specific legal right is violated (Injuria Sine Damno), the courts will intervene even if no physical or financial harm has occurred.
Leading Case Reference: Ashby v. White (1703)
In this landmark case, a qualified voter was prevented from casting his vote by a returning officer. Although the candidate he intended to vote for won anyway—meaning the plaintiff suffered no pecuniary (financial) loss—the court held that the violation of his legal right to vote was an injury in itself.
Lord Holt famously stated:
“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it.”
Practical Example: Legal Right Without Financial Loss
If someone builds a fence that slightly encroaches on your land, you may not suffer a financial loss, but your legal right to exclusive possession is violated. Under this maxim, you are entitled to a remedy (such as an injunction or nominal damages).
II. Classes of Remedies Available Against Injury or Loss
When an individual suffers a wrong, the legal system offers various “classes” of remedies depending on the nature of the harm and the desired outcome.
Judicial Remedies
These are remedies granted by a court of law through formal litigation.
- Damages (Monetary Compensation): The most common remedy. The goal is to put the injured party in the position they would have been in had the wrong not occurred.
-
Injunctions: A court order requiring a party to do, or refrain from doing, a specific act.
Example: A court ordering a factory to stop polluting a nearby stream (Prohibitory Injunction). -
Specific Performance: Primarily in contract law, where the court compels a party to fulfill their specific contractual obligations rather than just paying money.
Example: If a seller refuses to hand over a unique piece of antique art, money might not be enough; the court may order the actual transfer of the art.
Extra-Judicial Remedies
These are actions a person can legally take themselves without going to court.
- Self-Defense: Using reasonable force to protect oneself or property.
- Expulsion of a Trespasser: Using reasonable force to remove someone unlawfully on your land.
- Abatement of Nuisance: For instance, cutting overhanging branches from a neighbor’s tree that are encroaching on your property (after giving notice).
III. Distinguishing Features: Damages in Tort vs. Breach of Contract
In legal theory, while both Tort and Contract law fall under civil obligations, the nature and calculation of damages (compensation) differ significantly. The fundamental distinction lies in the goal of the law: Contract law seeks to fulfill expectations, whereas Tort law seeks to restore the status quo.
Primary Goal of Damages
-
Breach of Contract: The aim is Expectation Interest. The court attempts to put the claimant in the position they would have been in if the contract had been performed.
Case Law: Robinson v Harman (1848). -
Tort: The aim is Restitution (Restorative). The court attempts to put the claimant in the position they would have been in if the tort had never occurred.
Case Law: Livingstone v Rawyards Coal Co (1880).
Easy Example
You buy a laptop for $1,000 that was promised to have a high-end graphics card (worth $300), but it arrives with a standard one (worth $100).
- Contract Claim: You get $200 (the “benefit of the bargain” to get the promised quality).
- Tort Claim (if the seller negligently broke it): You get the cost to repair it to its original state before the break.
Remoteness of Damage (The “How Far” Rule)
This determines which consequences the defendant is actually responsible for.
-
Breach of Contract: Damages are limited to what was in the reasonable contemplation of both parties at the time the contract was made.
Case Law: Hadley v Baxendale (1854) – Loss must be a “natural” result or specifically communicated. -
Tort: Damages are limited by Reasonable Foreseeability at the time of the breach of duty.
Case Law: The Wagon Mound (No. 1) (1961) – If the type of damage is foreseeable, the defendant is liable for the full extent.
Duty Owed
- Breach of Contract: The duty is voluntarily assumed and owed only to the specific party in the contract (Privity of Contract).
-
Tort: The duty is imposed by law (e.g., the duty to drive safely) and is owed to “persons generally” or those foreseeable as neighbors.
Case Law: Donoghue v Stevenson (1932).
Punitive (Exemplary) Damages
- Breach of Contract: Almost never awarded. Contract law is not about punishment; it is about commercial compensation. Even a “bad faith” breach usually only results in compensatory damages.
-
Tort: Can be awarded in exceptional cases to punish the defendant for “outrageous” or “oppressive” conduct.
Case Law: Rookes v Barnard (1964).
Liquidated vs. Unliquidated Damages
- Breach of Contract: Parties often agree beforehand on a fixed sum to be paid if a breach occurs (Liquidated Damages).
- Tort: Damages are always Unliquidated, meaning they are not fixed in advance and must be determined by the court based on the evidence of harm.
Limitation Periods
While the specific years vary by jurisdiction, the starting point differs:
- Breach of Contract: The clock usually starts the moment the contract is breached, even if no damage has occurred yet.
- Tort: The clock usually starts from the date the damage occurs (which can be much later than the negligent act).
Pure Economic Loss
-
Tort: Generally, you cannot claim for “pure economic loss” (money lost that isn’t tied to physical injury or property damage). The law is wary of opening “floodgates” of litigation.
Case Law: Spartan Steel & Alloys Ltd v Martin & Co (1973). - Breach of Contract: Economic loss is the core of contract damages. If a breach causes a loss of profit, that loss is almost always recoverable because the contract’s purpose was likely financial gain.
Mitigation of Loss
While both require the claimant to “mitigate” (minimize) their losses, the application differs:
- Breach of Contract: The claimant must take reasonable steps to find an alternative (e.g., buying the goods from another supplier). Failure to do so stops them from claiming losses they could have avoided.
- Tort: Mitigation still applies, but it is often more complex in cases of personal injury. A claimant isn’t forced to undergo high-risk surgery just to “mitigate” the defendant’s payout for disability.
Contributory Negligence
-
Tort: If the claimant was partially at fault for their own injury, the damages are reduced proportionally (e.g., 25% reduction for not wearing a seatbelt).
Case Law: Sayers v Harlow UDC (1958). - Breach of Contract: Historically, contributory negligence did not apply to contract claims unless the breach was also a tort (negligence). If a contract is broken, the defendant is usually 100% liable for the resulting loss regardless of the claimant’s minor errors.
Non-Pecuniary Loss (Mental Distress)
-
Breach of Contract: Damages for “hurt feelings” or “mental distress” are generally not allowed in commercial contracts. They are only awarded if the very object of the contract was pleasure or relaxation.
Case Law: Jarvis v Swans Tours Ltd (1972) (The “disappointed holiday-maker” case). - Tort: Damages for pain, suffering, and loss of amenity (PSLA) are a standard component of most personal injury tort claims.
The “Thin Skull” Rule vs. Contemplation
- Tort: You must “take your victim as you find them.” If a minor impact causes massive damage because the victim has a rare bone disease, the defendant pays for the whole injury (Smith v Leech Brain & Co).
- Breach of Contract: The defendant is not liable for “extra” damages caused by the claimant’s unique, unknown circumstances unless they were disclosed at the time of the contract (Hadley v Baxendale).
Calculation Date
- Breach of Contract: Damages are usually assessed at the date of the breach.
- Tort: Damages are often assessed at the date of the judgment to ensure the amount accurately reflects the cost of restoration (especially relevant with inflation or ongoing medical costs).
Practical Example: The Defective Oven
Imagine a bakery buys an oven that explodes because of a manufacturing defect.
- Contract Claim: The baker sues for the lost profits from the bread they couldn’t sell that week (Expectation Interest).
- Tort Claim (Negligence): The baker sues for the physical damage the explosion caused to the surrounding walls and for a burn injury to their arm (Restoring the status quo).
Comparison Table: Tort Law vs. Contract Law
| Feature | Contract Law | Tort Law |
|---|---|---|
| Primary Goal | Expectation Interest: Put the claimant in the position they would have been in had the contract been performed. | Restorative: Put the claimant in the position they were in before the wrong occurred (Status Quo). |
| Source of Duty | Voluntarily assumed by the parties involved (Privity of Contract). | Imposed by law; owed to “persons generally” (The Neighbor Principle). |
| Remoteness Rule | Limited to what was in reasonable contemplation of both parties at the time of the contract. | Limited by reasonable foreseeability of the type of damage at the time of the breach. |
| Pure Economic Loss | Recoverable; often the primary purpose of the claim (lost profits). | Generally not recoverable unless tied to physical damage or specific exceptions. |
| Type of Damages | Usually Liquidated (pre-agreed) or compensatory. | Unliquidated (determined by the court after the harm). |
| Punitive Damages | Almost never awarded; the focus is on commercial compensation. | May be awarded for outrageous/oppressive conduct to punish the defendant. |
| Limitation Period | Clock starts at the moment of breach, regardless of damage. | Clock usually starts when the damage occurs. |
| Contributory Negligence | Historically not applicable (usually 100% liability or none). | Damages are proportionally reduced based on the claimant’s fault. |
| Victim’s Condition | Defendant not liable for unique circumstances unless disclosed (Hadley v Baxendale). | “Thin Skull Rule”: You must take your victim as you find them. |
| Mental Distress | Generally not allowed unless the contract’s goal was pleasure (e.g., a holiday). | Standard part of claims (Pain, Suffering, and Loss of Amenity). |
| Calculation Date | Usually assessed at the date of the breach. | Often assessed at the date of judgment (to account for inflation/medical costs). |
Visualizing the Key Difference
The difference in the “goal” of damages is often the hardest part to grasp. Think of it as a timeline:
- In Tort: The law looks backward to return you to where you were before the accident.
- In Contract: The law looks forward to give you the “benefit of the bargain” you expected to have.
Would you like me to find more specific case law examples for any of these categories, or perhaps create a few more “Practical Examples” like the Defective Oven to test your understanding?
IV. Leading Case Analysis and Practical Illustrations
To truly grasp these concepts, we must look at the judicial precedents that shaped them.
Remoteness in Contract: Hadley v. Baxendale (1854)
| Aspect | Details |
|---|---|
| Facts |
The plaintiffs were millers whose crankshaft broke. They hired the defendant, a carrier, to take it to the engineers. The carrier delayed the delivery, causing the mill to stay closed longer and the millers to lose profit. |
| Held | The court ruled the carrier was not liable for the lost profits. |
| Principle |
Damages for breach of contract are limited to those that arise naturally from the breach or those that were in the reasonable contemplation of both parties at the time of the contract. Since the carrier didn’t know the mill would stop without the shaft, the loss was too remote. |
The Difference in Remoteness Tests: The Heron II (1969)
Analysis: This case highlighted that the test for remoteness is stricter
in contract than in tort.
- In Contract: The loss must be “not unlikely” or a “serious possibility.”
- In Tort: The test is simpler: was the type of damage “reasonably foreseeable”?
Practical Illustration:
-
If a taxi driver is late taking you to an interview (Contract), they aren’t liable
for your lost potential salary unless you warned them. -
But if they hit you with the car (Tort), they are liable for your medical bills
regardless of prior warnings.
The Expectation Principle: Robinson v. Harman (1848)
Held: Parke B stated the classic rule: “where a party sustains a loss by
reason of a breach of contract, he is… to be placed in the same situation, with
respect to damages, as if the contract had been performed.”
Practical Illustration: If you buy a house for $100k that is actually worth
$120k, and the seller backs out, your damages are $20k (the profit you expected),
not just the return of your deposit.
Restitution and Net Loss: British Transport Commission v. Gourley (1956)
Principle: In Tort, because the goal is to restore the status quo,
the court must look at the actual loss.
Held: When awarding damages for lost earnings due to an accident,
the court must deduct the tax the plaintiff would have paid. If they gave the
“gross” salary, the plaintiff would be better off than before the accident,
which violates the restitution principle.
V. Conclusion: The Equilibrium of Right and Remedy
The legal landscape is built upon the delicate balance between rights and
responsibilities. The principle of Ubi Jus, Ibi Remedium ensures that the law
remains a living, protective force rather than a static set of rules. Whether
through the discretionary power of a judge in awarding unliquidated damages in
Tort, or the enforcement of specific terms in a Contract, the ultimate goal
remains the same: to achieve justice by repairing the breach in the legal order.
Understanding these distinctions allows students and practitioners to navigate
the complexities of litigation with precision, ensuring that for every injury,
a fair and equitable remedy is found.
Written By: Judge Nazmul Hasan
Senior Judicial Magistrate | Prime Minister Gold Medalist
Nazmul Hasan is a highly accomplished judicial officer and legal scholar from Bangladesh, distinguished by a rare blend of judicial service excellence and unparalleled academic achievement.
Professional Expertise
| Title | Achievement / Service | Details |
|---|---|---|
| Senior Judicial Magistrate | Bangladesh Judicial Service (BJS) | Serving as a Senior Judicial Magistrate, demonstrating profound expertise in dispensing justice and administering court procedures. |
| Service Rank | 11th Bangladesh Judicial Service (BJS) | Secured the 7th Merit Position overall in the rigorous 11th BJS competitive examination, marking an exceptional start to a distinguished judicial career. |
Academic Distinction
| Qualification | Institution | Recognition |
|---|---|---|
| LL.B. (Hons.) | University of Rajshahi | First Class First (Top of the Cohort), signifying ultimate academic mastery in undergraduate legal studies. |
| LL.M. | University of Rajshahi | Achieved First Class standing, further solidifying expertise and specialized knowledge in advanced legal disciplines. |
Honors & Achievements (Awards of Excellence)
- Prime Minister Gold Medalist (2017)
Awarded the nation's most prestigious academic honor for outstanding performance across all disciplines at the university level. - Agrani Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic excellence and leadership in the field of law.
Contact Details Email: [email protected]
