This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A brief discussion of the remedies available in case of breach, is necessary to a complete understanding of the effects and consequences of certain of the forms of discharge. In case of breach amounting to a discharge the party not at fault had at Common Law an election between two theories of his case. He could sue on the contract and recover damages for its breach; or if he had parted with anything of value thereunder for which he had not been compensated he could ignore the contract and sue to recover a reasonable compensation therefor. These two theories of the case will be discussed in this chapter and the one following.
It may here be noted that this right of election belongs to the party not at fault. If he wishes to recover damages the adversary party cannot compel him to sue to recover merely what he has expended under the contract.1 The right of the party not in default to demand repayment, given by the terms of the contract, does not exclude his right to recover damages.3 Under proper circumstances equity will give the affirmative relief of specific performance or the negative relief of injunction. These forms of relief will be discussed subsequently.