4 Remedial Liability

Salmond's famous distinction: liability is remedial when its purpose is to enforce a right — to give the claimant his due (the value of the promise, the return of the land, the price of the injury); it is penal when its purpose is to enforce a prohibition — to punish breach of a duty framed as a prohibition.Two classic Salmondian rules structure remedial liability:1. "Ubi jus ibi remedium" — where there is a right, there is a remedy. The very concept of a legal right (Unit 1) entails remedial liability in someone upon breach.2. Remedial liability is general; penal liability is exceptional. The remedial obligation (to compensate, restore, pay) binds anyone — even an innocent third party who innocently received the claimant's property may be under a remedial obligation to disgorge it — whereas penal liability binds only the wrongdoer, and only where blame (mens rea / negligence) can be fixed. You can be made to pay back without fault, but not to be punished without fault.Remedial liability also explains specific vs. substitute remedies: courts prefer the specific (specific performance, rectification, delivery of the very thing) and resort to substitution (money damages) when the specific is impossible or inequitable — a principle visible in Nepal's Contract Act 2056 and Specific Relief Act 2021 remedies (rectification, performance, cancellation) and in the…