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There are two different categories of remedies available: self-help and judicial. Self-help remedies are without the involvement of the court and only available in material breach cases. Among the kinds of self-help remedies are rescission and retention. Rescission occurs when the innocent party decides not to continue with the contract and cancels it as if it never happened. If a borrower decides to cancel a loan within the rescission period, any fees paid in relation to the loan will be refunded by the lender. However, if the innocent party suffers a loss from the breach then they are entitled to sue the other party for damages.
On the other hand, retention is when the innocent party withholds any payments or performances which were included within the contract, which counteracts the performance/payment not received. This does not bring the contract to an end, it merely suspends it. A good example of retention is a ‘rent-strike’. A situation that this could happen is when a tenant withholds a payment of rent from the landlord until the landlord fixes repairs. The case of Macari v Celtic FC(2000)5 is an example of retention. In this case, there was a breach of contract by CFC, Macari withdrew his performance until the issue was resolved.
Judicial methods can only be ordered by the court. Among the main judicial remedies are recovery of debt, specific implement, interdict and damages. Failure to make payments under a contract is one of the most common ways of breaching a contract. The party whom is due the payment is able to sue the other party for the money which is owed. For example, if you buy items from a company on credit terms and the items are then delivered and you are given a payback period of one month. If you fail to make the payment, the company can demand the payment by suing you in court. Therefore, requiring the contract breaker to perform the obligations within the contract.
Another remedy which requires the breaker to perform the obligations is known as specific implement. The difference between the action of debts and specific implement is that, unlike the action of debts requiring the repayment of the money owed, specific implement seeks the repayment of performance from the contract breaker.
Interdict is the opposite from specific implement in the sense that, it does not seek the repayment of performance, it is an order not to perform. It is used to prevent or stop parties from breaching contracts. A good example for interdict is the Church Commissioners for England v Abbey National (1994).
The most common remedy of the judicial method is damages. Damages is where money is payable for the loss of performance. The damages payment is to compensate the loss of time, effort and performance lost by the other party due to the breach of the contract. Although not every loss can be compensated for. A famous case for the decline of disgorgement damages is Teacher v Calder (1899).
Civil law is when there is a dispute between private citizens and one party wants to go to civil court to seek a remedy. They have to seek the help of the civil court themselves, it does not automatically happen. Whereas criminal law is between a person and the state – when a person has been charged with a crime and is brought before the criminal court. The criminal law ensures that every citizen within the UK knows what acceptable behaviour is and what is not. For example, it is not acceptable to murder another person, so the criminal law enforces this. When the criminal law is broken it is seen as a breach against our whole society whereas civil law is between the two parties.
Unlike civil law where the party has to actively seek the help of the court themselves, criminal law is the opposite. The Procurator Fiscal decides whether a criminal case should go to court. There must be enough evidence against the accused to allow a criminal case to go to court to prove ‘beyond reasonable doubt’. However, criminal law is less strict that the evidence needed in the criminal cases and only needs to prove that it is more likely than not that what they are claiming is true.
The parties involved in the two classifications have similarities but also many differences. In a civil case there are the two parties involved in the case. The judge whom is in charge of everything that happens in the court room and the defence lawyers – one representing both parties. On the other hand, the criminal system is more complex. The judge is still present and is in charge of the court room but has less of a role in the decision making of the trail as there is a jury of 15 people. The Procurator Fiscal is the lawyer for the prosecution whom is presenting the case against the accused and the defence layer tests the evidence presented on behalf of the accused. In Scotland, there is three verdicts available for all courts, Guilty – Not Guilty – Not Proven.
As both classifications of law may overlap during certain situations. Criminal law protects the community whereas civil law protects the individual. For instance, if a person was to be the subject of rumours, the community is not affected but the rumours could be seriously harmful, turning it into a criminal matter.
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