Page:Harvard Law Review Volume 10.djvu/523

497 KEENER ON QUASI-CONTRACTS. 497 the obligation upon a judgment is but this secondary obligation so judicially defined and sanctioned. The remedy for a breach of a right is that judgment which the court will render, and the possible remedies for each class of rights are readily ascertainable. For reasons of convenience, I shall con- sider first the duty of co-operation. The right of co-operation is a positive right, requiring active performance, and a breach of it is an omission. In the case of a positive right the court may compel the defendant to repair his omission by doing the very act which the obligation prescribes and which the defendant has left undone. The obligation to maintain fences was thus specifically enforced at common law by the writ de curia clatcdenda, which required the defendant actually to build the fence.^ This remedy may be called specific reparation of the breach. There is another and more usual remedy, however, in the award of damages, which by antithesis may be called reparation in value. The damages are of course the amount of money necessary to put the plaintiff in a position as good pecuniarily as that which he would have occupied had the obligation been performed. The distinction between specific reparation and damages obtains even when the obligation is to pay money. If the court should order the defendant to make the payment himself, and should enforce its man- date by the process of contempt, that would be specific reparation. If it should undertake to make the payment itself out of the de- fendant's property by a writ of execution, that would be damages. The right of freedom is a negative right, requiring forbearance, and a breach of it is a fault of commission. Specific reparation, then, in the complete sense of doing that which the obligation pre- scribes, is of course impossible. The defendant's obligation was to refrain from acting ; but having broken his obligation by acting, he cannot so turn back the hands of time as to undo his act and then refrain from acting. Damages, however, or reparation in value, are quite possible, and are in fact the most usual remedy. There is a remedy other than reparation possible in some cases of torts. Reparation looks only to the plaintiff's loss ; but in some cases the defendant acquires something by the wrong, and in that case he must restore what he has received. Thus, if the defend- ant commits an assault and battery, the plaintiff suffers damage, but the defendant has acquired nothing. On the other hand, if the 1 Lawrence v. Jenkins, L. R. 8 Q. B. 274 ; s. c. 2 Gray's Cas. on Prop. 324.