Injunction: Difference between revisions

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{{g}}The [[injunction]] is an [[equitable]] [[remedy]] that originated in the English [[Courts of chancery|courts of equity]] to provide redress for wrongs for which an award of money [[damages]] doesn’t quite scratch the itch. An [[injunction]] can be given only when there is "no adequate remedy at law." So, “M’lud I don’t want money. I want him to stop doing what he’s doing, that he promised he wouldn’t.” Obvious examples where this principal is fairly self-evidently so are [[Confidentiality obligation - Confi Provision|confidentiality obligations]].
{{a|contract|}}{{injunction capsule}}
===injunctions to enforce [[confidentiality agreement]]s===
{{injunctions and confidentiality agreements}}
There common conception, at least among the draughtspeople of [[confidentiality agreement]]s, that one’s express acknowledgement that one’s contractual obligations are not of the type where [[damages]] will be an adequate remedy improve a litigant’s odds of winning an injunction later. It is common see [[confidentiality agreement]]s do just that.
 
But — and here’s the snippy bit — in the commercial world, anything of value is meant to be quantifiable in the dollars and sense. [[Homo economicus]]’ view might be blinkered, it might be philistine — but it conforms to classic economics theory. So in one sense if the right you feel has been infringed, ''it can’t have been very valuable''.
 
And so, in most cases where a [[confidentiality agreement]] bites, it seems: if (boring example) I give you my confidential shareholding arrangements so you can complete your [[KYC]] procedures, or if (racy one) for a fat payoff, you agree a gagging clause to not disclose the terrible things I did to you, and then you go and blab about these things, I might be embarrassed, but I am not likely to suffer pecuniary loss. Even with a customer list, it is likely to be consequential loss (loss of profits) so hard to recover under a normal contract action.


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*{{confiprov|Remedies}} in the context of our lovely [[Confi Anatomy]]
*{{confiprov|Remedies}} in the context of our lovely [[Confi Anatomy]]

Latest revision as of 13:24, 14 October 2020

The basic principles of contract
Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent

Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation
Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee
Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent
Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability
Not contracts: Restitutionquasi-contractquasi-agency

Index: Click to expand:
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An injunction is an equitable remedy for breach of contract — or, for that matter, tort, but finance types tend not to care so much about them — that originated in the English courts of equity. Its aim: to stop someone behaving inequitably — to “enjoin” the person so to speak, from indulging in turpitude — thereby providing a redress for wrongs for which an award of money damages — the usual tool in the common law’s armoury — doesn’t quite scratch the itch. An injunction can be given only when there is “no adequate remedy at law” — meaning, principally, the common law, but we suppose it could include statute and regulation as well. Compare with specific performance.

Injunctions to enforce confidentiality agreements

There common conception, at least among the draughtspeople of confidentiality agreements, that having your recipient acknowledge in the contract that your contractual obligations, while of course severe, are of a type for which damages might not be adequate compensation improve your odds of obtaining an equitable injunction later. Thus, it is common to see confidentiality agreements do just that.

But — and here’s the snippy bit — in the commercial world, anything of value is meant to be quantifiable in the dollars and sense. Homo economicus’ view might be blinkered; it might be philistine — but it conforms to classic economic theory. So in one sense if the right you feel has been infringed can’t be addressed with folding stuff, it can’t have been very valuable.

And so, in most cases where a confidentiality agreement bites, this seems to be the case. If — boring example — I give you my confidential shareholding arrangements so you can complete your KYC procedures, or if — racy one — for a fat payoff, you agree a venal gagging clause to not disclose the terrible psychological damage I inflicted on you where you were my studio gopher[1], and then you go and blab about these things, I might be embarrassed, but I am not likely to suffer much direct financial loss. Am I? Even if you publish my confidential client list to the world, my loss is likely to be indirect: the loss of profits from business I didn’t, as a consequence win, which any student of the law of contracts will know is hard to recover under a normal contract action.

See also

  1. Did someone say gopher?