1.1 Rights, duties, and remedies

Remedies in private law are legal instruments that one party may use in response to an injustice in the past, present or future. Some remedies are ‘self-help remedies’ in that they require no judicial intervention and can be deployed by the entitled party herself.1 Examples are the extrajudicial rescission or nullification of a contract or the removal of overhanging branches.2 Most remedies, however, require the petitioning of a judge. Those remedies usually entail the court ordering the defendant to do or refrain from something, such as paying damages or specifically performing a legal obligation.3 In some cases, the judge herself takes on an important role by having her judgment stand in the place of a juridical act, such as the transfer of real property, or by declaring the parties’ respective legal positions.4 In exceptional cases, the judge may authorize the claimant to take upon herself to effectuate the legally prescribed situation.5

This diverse collection of instruments is crucial in giving real effect to abstract legal claims and rights. Despite their practical importance, however, attention for these instruments as a delineated field of study is limited.6 Unlike in the ancient Roman or early common law, in 21^st century continental law the remedy does not take centre stage. Where in those systems the relevant question was whether a certain set of facts allowed for a remedy from A against B, the modern approach requires an analysis, first, of whether A has violated a duty she owed against B or infringed B’s right in some way.7 Where in those systems ‘right’ and ‘remedy’ were identical, they are emphatically separate concepts in modern thinking.

Disconnecting rights from remedies probably began somewhere in medieval times8 and it is submitted that it is still not fully complete. For instance, the right to property is still to a large extent defined by the ability to reclaim it from those who possess it without legal ground and the claim for damages is codified as an obligation that arises upon the violation of a duty owed to another person.9 The substantive and procedural are, in other words, still heavily intertwined today. Yet the disconnect does matter. In an action-based system, the question is simply whether the facts give rise to a remedy. In the modern approach, the question becomes more generally what we owe to each other and what we are entitled to. That change in thinking allows for asking the question whether one breach of duty or infringement of right could give rise to more than one remedy. That question – though not explicitly so asked – was answered in the affirmative in 20^th century by the development of the order for specific performance of legal obligations, the order to compensate ‘in kind’ and the account of profits.10 Even though some remedies are still presented as part of a right or, conversely, a legal obligation, most remedies have now obtained their own place in the Dutch Civil Code, separate from the legal rights and obligations that give rise to them.11