3.2 A choice between remedies

The result of this approach is that there often is no concurrence of remedies. In most cases, the rule dictates that there should only be one remedy available, so that the question of election becomes obsolete. In those rare cases where the same set of circumstances could conceivably give rise to multiple remedies, additional rules are required. The general rules of concurrence provide a useful structure for judging these cases. The main rule is that when rules apply concurrently, they are to be applied cumulatively. A choice only needs to be made when the results of applying both rules are contradictory.1 The question as to whether applying remedies concurrently leads to inconsistent or contradictory results may seem odd at first sight. After all, why would it be contradictory to award damages, an account of profits and grant an injunction? It is certainly possible to combine all these remedies.

That picture changes, however, if it is recalled that each remedy is granted to approximate a particular scenario that was ‘promised’ by the norm. There are cases where multiple remedies are available, but they strive towards the realisation of incompatible scenarios. This is usually the case where the rule offers the beneficiary a choice between two alternative scenarios (e.g. either you alone have the right to obtain these profits or someone else makes these profits on your behalf) and the beneficiary seeks to realise both scenarios through remedial law (e.g. by claiming compensation for lost profits and an account of profits). Presented as such that sounds like a novel rule, but in fact lawyers are quite used to working with this rule.

Imagine a case where a rule is continuously or frequently violated. In such a case, the beneficiary of the rule may obtain a court order ordering the addressee of the rule to comply with her duty in the future. To the extent that she has also suffered losses, she may, of course, obtain an order for damages, too. So long as she is only seeking compensation for losses actually suffered up until the moment the violation of the rule ceases, there is nothing problematic about this cumulation. It becomes problematic, however, if she were to claim both a court order to cease the violation and the compensation of future losses. Quite obviously, combining these remedies should not be possible because once the violation ceases, she will no longer suffer any additional losses. Awarding both remedies would be inconsistent because it would allow her to realise two incompatible scenarios: one in which she suffers no losses because the violation ceased and one in which the violation continues, but she receives a monetary award instead. Viewed this way, the rule against double compensation is essentially just a rule prohibiting that remedial law be used to realize incompatible scenarios. And that more general rule can easily be applied across the board.

Take the example alluded to above, where the beneficiary of a rule is seeking both compensation of lost profits and an account of profits. If a tenant sublets her apartment illegally, the owner is prima facie entitled to both compensation of losses and an account of profits,2 but if those losses consist of lost profits a problem emerges. In that case the owner would be trying to use remedial law to approximate both the scenario in which she obtains the profits herself and the scenario in which the tenant collects the profits for her. Since those two scenarios could not conceivably exist simultaneously – the apartment can only be rented out once – combining these two remedies would be inconsistent. This is different, however, if the tenant sublets the apartment at a profit and the subtenant damages the apartment, and the owner claims both an account of the profits made and compensation for the damage to the apartment. In that case, she would be aiming to approximate a scenario in which the apartment was sublet for her benefit without being damaged. There is nothing inherently inconsistent about that scenario and the rule clearly promises both.

The only exception to this rule is the election between compensation in kind and monetary compensation. A choice between those two must always be made, since they both seek to compensate certain losses.3 It is, of course, possible to combine the two in those rare cases where the compensation in kind order compensated one part of the loss and the order for damages compensates the other, but generally speaking they will be alternative remedies. An important difference between this remedy and the other remedies is that, due to its discretionary character, it is up to the judge to make the election between monetary compensation and compensation in kind. The rule can provide her some guidance in making that election, but ultimately it will be up to her.