Contractual Remedies: Exploring Legal Options for Breach of Commercial Contracts

When entering into a commercial contract, both parties have certain expectations and obligations that they are bound to fulfill. However, there are times when one party fails to uphold their end of the agreement, resulting in a breach of contract. In such situations, it is crucial to understand the available legal options for addressing and remedying these breaches.

This guide provides an overview of contractual remedies and explores the legal avenues that can be pursued in cases of breach of commercial contracts. We will delve into the different types of remedies, such as damages, specific performance, rescission, and reformation, and examine the factors that influence their applicability.

Understanding the legal options for addressing breach of contract is vital for protecting your rights and seeking appropriate remedies. While this guide provides valuable insights, it is important to consult with a qualified legal professional to assess your specific circumstances and determine the best course of action.


Commercial contracts encompass a wide range of agreements, and breaches can take various forms. Common breaches include failure to perform obligations within the specified timeframe, non-payment or underpayment, defective or substandard performance, violation of confidentiality or non-disclosure provisions, and failure to comply with contractual terms and conditions. Understanding the types of breaches that can occur is essential for determining the appropriate legal options for seeking remedies.

Types of Contractual Remedies

When a breach of a commercial contract occurs, parties have various legal options to pursue as remedies. Understanding the types of contractual remedies available is crucial for protecting rights and seeking appropriate recourse.


  1. Compensatory damages: These are the most common type of damages awarded in breach of contract cases. They aim to put the non-breaching party in the position they would have been in had the breach not occurred. Compensatory damages typically cover actual financial losses and can include both direct and indirect damages.
  2. Consequential damages: Also known as special damages, consequential damages are those that arise as a result of the breach and were reasonably foreseeable by both parties at the time of contract formation. Unlike compensatory damages, consequential damages go beyond direct losses and may include lost profits or business opportunities.
  3. Liquidated damages: In some contracts, the parties may include a provision specifying a predetermined amount of damages to be paid in case of a breach. These are known as liquidated damages clauses. While such clauses can provide certainty and ease the burden of proof, courts will assess their reasonableness and enforceability.

Specific Performance

  1. Definition and purpose: Specific performance is a remedy where the court orders the breaching party to fulfill their contractual obligations as specified in the contract. It is typically sought when monetary damages are inadequate or when the subject matter of the contract is unique or rare.
  2. Elements required for specific performance: To obtain a specific performance remedy, the non-breaching party must demonstrate that the contract is valid, that they have substantially performed their obligations, and that the breach by the other party is material.
  3. Limitations and exceptions: Specific performance may not be available in certain circumstances, such as when the contract involves personal services or requires ongoing supervision. Courts will also consider whether enforcing specific performance is practical and feasible.


  1. Grounds for rescission: Rescission involves canceling the contract and restoring the parties to their pre-contract positions. It may be sought in cases of fraudulent misrepresentation, mutual mistake, duress, undue influence, or illegality of the contract.
  2. Effects and implications of rescission: Rescission nullifies the contract, releasing the parties from their obligations. Any consideration exchanged between the parties is returned, and they are restored to their pre-contract positions. Rescission aims to undo the legal consequences of the contract as if it never existed.


  1. Purpose of contract reformation: Contract reformation is sought when the written contract does not accurately reflect the true intentions of the parties due to a mistake or omission. The objective is to correct the contract to reflect the actual agreement reached by the parties.
  2. Circumstances warranting contract reformation: Reformation may be warranted in cases of mutual mistake, unilateral mistake, or a mistake caused by fraud or misrepresentation. It can also be sought when there is a clerical error in the contract or if terms were omitted inadvertently.
  3. Process and considerations for contract reformation: Reformation requires filing a legal action seeking the modification of the contract. The court will consider evidence of the parties’ original intent and may order specific changes to the contract to align with their intentions.

Consulting a legal professional is essential when considering contractual remedies, as the availability and appropriateness of each remedy may vary depending on the specific circumstances of the breach and the applicable laws in your jurisdiction.

Legal Procedures for Seeking Contractual Remedies

Navigating the path to resolution when faced with a breach of contract requires understanding the various legal procedures available. From negotiation and mediation to arbitration and litigation, each option offers distinct advantages and considerations.

Negotiation and Mediation

In the realm of contractual disputes, the process of negotiation and mediation plays a pivotal role in reaching a resolution.

  1. Importance of initial negotiation and communication: Effective negotiation and open communication at the onset of a dispute can lay the foundation for a mutually acceptable solution. Parties involved in the contract should engage in constructive discussions to address concerns, clarify misunderstandings, and explore potential compromises. By fostering a cooperative atmosphere, initial negotiation sets the stage for resolving the dispute amicably.
  2. Role of mediation in resolving contractual disputes: Mediation offers a valuable alternative to litigation, providing a structured process facilitated by a neutral third party, the mediator. During mediation, the mediator helps the parties engage in constructive dialogue, identify underlying interests, and explore creative solutions. The mediator’s role is to facilitate communication, manage emotions, and guide the parties towards a mutually beneficial resolution. Mediation offers a more flexible and collaborative approach, allowing the parties to retain control over the outcome of the dispute while avoiding the time and expense associated with litigation.

By emphasising the importance of negotiation and highlighting the role of mediation, parties can explore constructive avenues for resolving contractual disputes, promoting effective communication and preserving valuable business relationships.


Arbitration is a popular alternative dispute resolution method for resolving contractual disputes outside of traditional court litigation.

Overview of arbitration process:

Arbitration involves submitting the dispute to one or more impartial arbitrators who act as private judges. The arbitration process typically includes the following steps: the selection of arbitrators, the exchange of pleadings, the presentation of evidence and arguments, and the rendering of an arbitral award. The process can be tailored to suit the specific needs of the parties, including the choice of arbitral rules, the language of proceedings, and the venue.

Advantages and disadvantages of arbitration:


  • Confidentiality: Arbitration offers a level of confidentiality that is not always guaranteed in court proceedings, allowing parties to protect sensitive business information.
  • Flexibility: The parties have more control over the process, including the selection of arbitrators, the rules governing the proceedings, and the timeline for resolution.
  • Expertise: Arbitrators are often chosen based on their expertise in the subject matter, ensuring a decision by professionals familiar with the industry or specific legal issues.
  • Enforceability: Arbitral awards are generally enforceable internationally through treaties such as the New York Convention, simplifying the enforcement process.


  • Cost: Arbitration can be more expensive than negotiation or mediation, as parties are responsible for paying the arbitrators’ fees and other associated costs.
  • Limited recourse for appeal: The grounds for appealing an arbitral award are limited, providing parties with less recourse to challenge an unfavorable decision.
  • Lack of formal discovery: The discovery process in arbitration is often more limited compared to litigation, potentially impacting the parties’ ability to gather evidence.

Understanding the arbitration process and weighing its advantages and disadvantages allows parties to make informed decisions about utilising this alternative dispute resolution method for resolving contractual disputes.


Litigation is a traditional method of seeking contractual remedies through the court system. When negotiation and alternative dispute resolution methods have failed, parties may choose to pursue litigation to resolve their contractual disputes.

  1. Filing a lawsuit for breach of contract: In litigation, the aggrieved party initiates the legal process by filing a lawsuit in the appropriate court. The lawsuit typically alleges a breach of contract and seeks remedies such as damages, specific performance, or other appropriate relief.
  2. Stages and procedures in contract litigation: Contract litigation generally follows a series of stages, including:
    • Pleadings: The parties file their initial pleadings, including the complaint and the answer, outlining their respective positions and legal arguments.
    • Discovery: The parties exchange information and evidence through methods such as written requests, depositions, and document production.
    • Pre-trial proceedings: The court may hold hearings to address procedural matters, including motions, settlement conferences, and attempts to resolve the dispute.
    • Trial: If the case proceeds to trial, both parties present their evidence and arguments before a judge or jury.
    • Judgment and appeals: The court issues a judgment based on the evidence presented, and either party may have the right to appeal the decision.
  3. Pros and cons of litigation as a remedy option:
    • Pros:
      • Formal legal process: Litigation provides a structured and formal legal framework for resolving disputes, ensuring that the case is heard and decided by a judge or jury.
      • Clear legal remedies: The court has the authority to grant a wide range of remedies, including monetary damages, specific performance, and injunctive relief.
      • Right to appeal: Parties dissatisfied with the outcome of a trial may have the opportunity to appeal the decision to a higher court.
    • Cons:
      • Time-consuming: Litigation can be a lengthy process, involving multiple stages, court hearings, and potentially long waiting periods.
      • Costly: Litigation expenses can accumulate quickly, including attorney fees, court filing fees, expert witness fees, and other associated costs.
      • Loss of privacy: Court proceedings are generally public, meaning that sensitive business information may become part of the public record.

Considering the stages and procedures of contract litigation, as well as the pros and cons, allows parties to assess whether litigation is the most suitable remedy option for their contractual disputes.

Factors Influencing the Choice of Contractual Remedies

By carefully considering these factors, parties can make informed decisions when selecting the most appropriate contractual remedy. It is advisable to seek legal counsel to navigate these considerations and choose the remedy that best aligns with their specific circumstances and objectives.

Nature and extent of the breach: The nature and extent of the breach play a crucial role in determining the appropriate contractual remedy. Minor breaches may be resolved through negotiation or alternative dispute resolution methods, while significant breaches may warrant more assertive remedies such as specific performance or litigation.

Time and cost considerations: Time and cost considerations are essential factors when choosing a contractual remedy. Parties should assess the urgency of the matter and the resources required to pursue a particular remedy. Alternative dispute resolution methods like negotiation and mediation are generally quicker and less expensive compared to litigation.

Jurisdictional and enforceability issues: Jurisdictional and enforceability issues need to be considered, especially in international contracts. Parties should assess the enforceability of their chosen remedies in the relevant jurisdiction and whether the chosen forum has the authority to hear the case and render a binding decision.

Relationship preservation or termination goals: Parties should evaluate their goals in terms of preserving the business relationship or terminating it. Remedies like negotiation and mediation may promote communication and collaboration, preserving the relationship. However, in some cases, litigation or specific performance may be necessary to protect one’s rights and interests, even if it leads to the termination of the relationship.

Specific contract provisions and governing law: The terms of the contract and the governing law provisions can significantly influence the choice of remedies. Parties should review the contract to identify any clauses that address dispute resolution or prescribe specific remedies. Additionally, the governing law provisions may impact the available remedies and the procedures to pursue them.


In conclusion, understanding the various types of contractual remedies and the factors that influence their choice is crucial for effectively addressing breach of commercial contracts. Whether through negotiation and mediation, arbitration, or litigation, parties must carefully evaluate the nature of the breach, time and cost considerations, jurisdictional and enforceability issues, relationship preservation or termination goals, and the specific contract provisions and governing law. By doing so, parties can navigate the complexities of contractual disputes and seek appropriate remedies to protect their rights and interests. Seeking legal guidance is advisable to ensure the best course of action in pursuing contractual remedies.

*Disclaimer: This website copy is for informational purposes only and does not constitute legal advice. For legal advice, book an initial consultation with our commercial solicitors HERE.

Leave a Comment

Your email address will not be published. Required fields are marked *