Breach Of Contract Vs. Equitable Remedies

Written By: Randy J. Heller


When a contractor has a contract with an owner (and it can be either a written or verbal contract), the courts prefer to adjudicate the rights of the respective parties based on the terms of the contract. More abstract claims such as for “unjust enrichment” or “quantum meruit” (basically, for the “fair and reasonable value” of the services or materials) are frowned upon by the courts in the presence of a contract.
Lawyers eager to say something three times when once would have sufficed sometimes sue for (i) breach of contract; (ii) unjust enrichment, and also (iii) quantum meruit, all in the same complaint, as a matter of course. And a frequent result is that the defendant moves to strike the equitable causes of action and prevails. The courts quite regularly will dismiss the causes of action for unjust enrichment and quantum meruit as “duplicative of the breach of contract cause of action.” The result is that the defendant starts the case with an immediate legal victory.
In a recent case, however, the appellate division allowed the equitable claims to survive alongside the breach claim. The reason was that the defendant, in that case, denied the existence of a contract. Even if true, it may not have been the best strategy, because the court allowed all 3 causes of action to survive “in the alternative.” If it should ultimately be established that there was no contract, the contractor would be free to pursue its equitable theories of recovery.
The lesson to be learned is that if there is a chance that your “contract” may be invalid, or not provable, it may be wise to plead the equitable causes of action “in the alternative” – in addition to the cause of action for breach. This is particularly the case where the contract is not in writing. Perhaps state in the complaint that you are doing so in contemplation of the possibility that the contract may not be provable. In that way, even if the defendant does not deny the existence of a valid and enforceable contract, you may be able to protect yourself against the possibility that you cannot prove your contract. And you may be able to defeat an immediate motion to dismiss your equitable claims.


about the authors

Randy J. Heller


For over forty years, Mr. Heller has specialized in construction law and litigation, representing some of the largest and most successful contractors in the nation.

View Profile