Contract Remedies: Difference between revisions
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== Client problems== | == Client problems== | ||
[[File:Consumer_Law_and_Debt_-_Contract_Remedies.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]] | |||
* Client wants to know what type of award a judge might make if a consumer or credit problem goes to court. | * Client wants to know what type of award a judge might make if a consumer or credit problem goes to court. | ||
== Summary of the law== | == Summary of the law== | ||
When a matter goes to court, the party bringing the action must set out their grounds for asking for a remedy (called the “cause of action”) and the type of remedy they want (this can be called the “relief” the party is seeking). | When a matter goes to court, the party bringing the action must set out their grounds for asking for a remedy (called the “cause of action”) and the type of remedy they want (this can be called the “relief” the party is seeking). | ||
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=== Actions by consumers against creditors or sellers=== | === Actions by consumers against creditors or sellers=== | ||
In most (but not all) '''cases brought by consumers''' against sellers and creditors, the consumer also asks for a judgment ordering the other side to pay money. The consumer is usually seeking compensation for some breach of the credit or sale agreement. For example, a consumer who has paid for goods that turn out to be defective may sue for compensation to make up for the value of the defect in the goods. Or, the consumer may base a case on a separate cause of action. For example, a debtor harassed by a collection agent may bring an action for damages under the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act''] (see the section on Harassment). | In most (but not all) '''cases brought by consumers''' against sellers and creditors, the consumer also asks for a judgment ordering the other side to pay money. The consumer is usually seeking compensation for some breach of the credit or sale agreement. For example, a consumer who has paid for goods that turn out to be defective may sue for compensation to make up for the value of the defect in the goods. Or, the consumer may base a case on a separate cause of action. For example, a debtor harassed by a collection agent may bring an action for damages under the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act''] (see the section on [[Harassment by Debt Collectors]]). | ||
A money judgment is the most common remedy available to consumers, but it is not the only one. In cases where there has been a fundamental breach of the contract by a creditor or seller, the court may order “rescission”. This is a legal term for undoing the contract and restoring the parties to their original situation. For example, the court may order the return of both the consumer’s money and the seller’s property. | A money judgment is the most common remedy available to consumers, but it is not the only one. In cases where there has been a fundamental breach of the contract by a creditor or seller, the court may order “rescission”. This is a legal term for undoing the contract and restoring the parties to their original situation. For example, the court may order the return of both the consumer’s money and the seller’s property. | ||
A court may also order that property seized from a debtor be returned to the debtor. This might be ordered if: | A court may also order that property seized from a debtor be returned to the debtor. This might be ordered if: | ||
* a debtor is in default of a security agreement but has the ability to reinstate the terms of the contract, or
| * a debtor is in default of a [[Security Agreements|security agreement]] but has the ability to reinstate the terms of the contract, or
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* the property of a debtor has been wrongfully seized; for example, a bailiff has repossessed property not covered by the creditor’s security agreement.
| * the property of a debtor has been wrongfully seized; for example, a [[Bailiffs, Court Bailiffs and Sheriffs|bailiff]] has repossessed property not covered by the creditor’s security agreement.
| ||
Other remedies are available in statute and common law under principles known as '''equity''' and '''unjust enrichment'''. It is usually necessary to get a lawyer’s advice because some of these remedies include declarations (court orders that make a party do something) and injunctions (court orders that prohibit a party from doing something). | Other remedies are available in statute and common law under principles known as '''equity''' and '''unjust enrichment'''. It is usually necessary to get a lawyer’s advice because some of these remedies include declarations (court orders that make a party do something) and injunctions (court orders that prohibit a party from doing something). | ||
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See the other sections under contracts: | See the other sections under contracts: | ||
* Contracts | * [[Contracts Overview]]
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* Contract | * [[Contract Defences]]
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* Opting Out and Cooling-off Periods
| * [[Opting Out and Cooling-off Periods]]
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* Contracts Made by | * [[Contracts Made by Minors]]
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See related topics: | See related topics: | ||
* Bailiffs, Court Bailiffs and | * [[Bailiffs, Court Bailiffs and Sheriffs]]
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* Misleading | * [[Misleading Advertising]]
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* Prepayment | * [[Prepayment Rights]]
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* Sale of Goods | * [[Sale of Goods Law]]
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* Unfair or Deceptive | * [[Unfair or Deceptive Practices]]
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See also People’s Law School’s pages on [https://www.peopleslawschool.ca/everyday-legal-problems/consumer/contracts contracts]. | See also People’s Law School’s pages on [https://www.peopleslawschool.ca/everyday-legal-problems/consumer/contracts contracts]. | ||
{{Consumer and Debt Law Navbox|type = consumer}} | {{Consumer and Debt Law Navbox|type = consumer}} | ||
Latest revision as of 16:21, 13 October 2018
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Alison Ward in August 2018. |
When a contract dispute goes to court, the party bringing the action will seek a remedy, which is the relief they are asking for.
Client problems
- Client wants to know what type of award a judge might make if a consumer or credit problem goes to court.
Summary of the law
When a matter goes to court, the party bringing the action must set out their grounds for asking for a remedy (called the “cause of action”) and the type of remedy they want (this can be called the “relief” the party is seeking).
Actions by creditors and sellers against consumers
In the majority of Small Claims or Supreme Court cases brought against consumers, creditors or sellers ask for a judgment ordering the consumer to pay money. The seller or creditor is usually seeking to recover the balance owed by the consumer. For example, a creditor who is suing on a defaulted credit agreement asks for a money judgment in the amount outstanding, along with interest and costs. Similarly, a supplier of goods or services who has not been paid asks for a judgment for the amount outstanding.
To successfully defend the action, the consumer must raise a defence that the court accepts, or show that the creditor or seller has failed to prove its case. Consumers may also ask for other kinds of remedies if they are sued. For example, a consumer being sued for a debt may ask the court to make an instalment payment order for the judgment (rather than ordering that the whole amount is due), or, in very exceptional circumstances, the court might order a stay of enforcement (that is, the plaintiff gets the judgment and is acknowledged to be in the right, but is not allowed to try to collect on it).
Actions by consumers against creditors or sellers
In most (but not all) cases brought by consumers against sellers and creditors, the consumer also asks for a judgment ordering the other side to pay money. The consumer is usually seeking compensation for some breach of the credit or sale agreement. For example, a consumer who has paid for goods that turn out to be defective may sue for compensation to make up for the value of the defect in the goods. Or, the consumer may base a case on a separate cause of action. For example, a debtor harassed by a collection agent may bring an action for damages under the Business Practices and Consumer Protection Act (see the section on Harassment by Debt Collectors).
A money judgment is the most common remedy available to consumers, but it is not the only one. In cases where there has been a fundamental breach of the contract by a creditor or seller, the court may order “rescission”. This is a legal term for undoing the contract and restoring the parties to their original situation. For example, the court may order the return of both the consumer’s money and the seller’s property.
A court may also order that property seized from a debtor be returned to the debtor. This might be ordered if:
- a debtor is in default of a security agreement but has the ability to reinstate the terms of the contract, or
- the property of a debtor has been wrongfully seized; for example, a bailiff has repossessed property not covered by the creditor’s security agreement.
Other remedies are available in statute and common law under principles known as equity and unjust enrichment. It is usually necessary to get a lawyer’s advice because some of these remedies include declarations (court orders that make a party do something) and injunctions (court orders that prohibit a party from doing something).
Related topics and materials
See the other sections under contracts:
See related topics:
- Bailiffs, Court Bailiffs and Sheriffs
- Misleading Advertising
- Prepayment Rights
- Sale of Goods Law
- Unfair or Deceptive Practices
See also People’s Law School’s pages on contracts.
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