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Nature Of RemediesProvisional Remedies

The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.

The law of remedies is concerned with the character and extent of relief to which an individual who has brought a legal action is entitled once the appropriate court procedure has been followed, and the individual has established that he or she has a substantive right that has been infringed by the defendant.

Categorized according to their purpose, the four basic types of judicial remedies are (1) damages; (2) restitution; (3) coercive remedies; and (4) declaratory remedies.

The remedy of damages is generally intended to compensate the injured party for any harm he or she has suffered. This kind of damages is ordinarily known as COMPENSATORY DAMAGES. Money is substituted for that which the plaintiff has lost or suffered. Nominal damages, generally a few cents or one dollar, are awarded to protect a right of a plaintiff even though he or she has suffered no actual harm. The theory underlying the award of PUNITIVE DAMAGES is different since they are imposed upon the defendant in order to deter or punish him or her, rather than to compensate the plaintiff.

The remedy of restitution is designed to restore the plaintiff to the position he or she occupied before his or her rights were violated. It is ordinarily measured by the defendant's gains, as opposed to the plaintiff's losses, in order to prevent the defendant from being unjustly enriched by the wrong. The remedy of restitution can result in either a pecuniary recovery or in the recovery of property.

Coercive remedies are orders by the court to force the defendant to do, or to refrain from doing, something to the plaintiff. An INJUNCTION backed by the CONTEMPT power is one kind of coercive remedy. When issuing this type of remedy, the court commands the defendant to act, or to refrain from acting, in a certain way. In the event that the defendant willfully disobeys, he or she might be jailed, fined, or otherwise punished for contempt. A decree for SPECIFIC PERFORMANCE commands the defendant to perform his or her part of a contract after a breach thereof has been established. It is issued only in cases where the subject matter of a contract is unique.

Declaratory remedies are sought when a plaintiff wishes to be made aware of what the law is, what it means, or whether or not it is constitutional, so that he or she will be able to take appropriate action. The main purpose of this kind of remedy is to determine an individual's rights in a particular situation.

Provisional Remedies

A provisional remedy is one that is adapted to meet a specific emergency. It is the temporary process available to the plaintiff in a civil action that protects him or her against loss, irreparable injury, or dissipation of the property while the action is pending. Some types of provisional remedies are injunction, receivership, arrest, attachment, and GARNISHMENT.

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