REMEDIES, RIGHTS, AND EQUITABLE ESTATES

Authors

Abstract

Reasoning from remedies to rights has always been in vogue. In primitive law, as Sir Henry Maine observed, the law of actions has such ascendency that "the substantive law has at first the look of being gradually secreted in the interstices of procedure." EARLY LAW AND CUSTOM, 389. As law matures, the distinction between substantive and adjective law becomes clearly recognized and it becomes the common method of legal analysis to found conclusions as to rights and duties upon bases remote from procedure and then to turn to adjective law demanding a remedy for the rights thus established. This process of thought is even carried to the length of recognizing rights of every imperfect sanction, as in the case of a contract within the Statute of Frauds. Yet we can never quite outgrow the older method of reasoning. The lawyer will frequently seek to ascertain his client's rights by inquiring what action he might maintain. Courts will occasionally assert that one has a right to break a contract and pay damages because the only common law remedy for breach is an action for damages. Lattimore v. Harsen, 14 Johns. 330; Hong Hoon v. Lum Wai, 26 Hawaii 546.

Recommended Citation

REMEDIES, RIGHTS, AND EQUITABLE ESTATES, 22 Mich. L. Rev. 834 (1924).
Available at: https://repository.law.umich.edu/mlr/vol22/iss8/10