Bar Review Remedies

Front 1

Laches

Back 1

A defense exercised in equity where a plaintiff has delayed asserting an equitable claim, and the delay has resulted in prejudice to the other party.

A court will only deny relief to a plaintiff where the delay is unreasonable under the circumstances. Laches begins to run from the time the plaintiff has knowledge that a right has been infringed.

Hint 1

Unreasonable delay

Front 2

Unclean Hands

Back 2

A defense to all equitable relief. A plaintiff must seek equity with clean hands in the matter. The issue of unclean hands must be related to the relief sought.

Hint 2

Seek equity

Front 3

Restitution

Back 3

The defendant has wrongfully obtained a benefit (property, services, satisfaction of an obligation, etc.), retention of which would result in unjust enrichment.
- Replevin, Ejectment, Quasi-contract, Constructive trust, Equitable lien.

Hint 3

Benefit

Front 4

Punitive Damages

Back 4

Available in tort, and can be awarded where the was willful, wanton, or malicious conduct. They are not usually allowed in negligence cases.

No punitive damages are allowed in contract, and where they are allowed they must not be excessive such that they are in invalid under the Fifth and Fourteenth Amendments.

Hint 4

Willful, wanton, or malicious

Front 5

Replevin

Back 5

A legal restitutionary remedy. The purpose is the recovery of specific chattels wrongfully taken or detained. In contract, the property must be identified in the contract, and the plaintiff must not have been able to cover.

Hint 5

Specific chattels

Front 6

Constructive Trust

Back 6

A equitable restitutionary remedy. It is applied by courts when the retention of property by the defendant-wrongdoer would result in unjust enrichment. Requirements are:
1) Title of property is held by the defendant
2) Unjust enrichment of defendant
3) Inadequacy of a legal remedy
4) There are no equitable defenses available to the defendant

Hint 6

Title held by defendant

Front 7

Injunctive Relief in Tort

Back 7

An order by the court that the defendant refrain from engaging in certain conduct or activity. The general requirements are:
1) Inadequacy of legal remedy
2) Property right
3) Feasibility of the court enforcing the decree
4) Balancing of the hardships between plaintiff and defendant
5) Defenses not available to the defendant

Hint 7

I Put Five Bucks Down

Front 8

Encroachment

Back 8

A continuing trespass on real property.

This usually occurs where the defendant has built a structure partly on the land of another. In measuring the damages and balancing the hardships, the court will consider whether it is a continuing trespass, a permanent trespass, money damages are inadequate, and balance the hardships considering whether it was an intentional encroachment or an inadvertent one.

Hint 8

Continuing

Front 9

Compensatory (expectation) Damages in Contract

Back 9

Compensatory damages in contract are the standard and characteristic legal remedy. It is intended to put the plaintiff in as good a position had the defendant performed on a contract, i.e. to give him his expectation interest in the contract.

The damages must have been Caused by the defendant's breach, Foreseeable, Certain, and Unavoidable. Normally this is the "benefit of the bargain." If not proven with "reasonable certainty" then reliance or restitution damages.

Hint 9

CFCU

Front 10

Reliance Damages

Back 10

Awarded for losses incurred by the plaintiff in reliance on the contract. Usually an award where lost profits or benefit of the bargain would be too speculative.

Reliance damages are "real" losses in a much more tangible way than losses of expectations.

Hint 10

Real losses

Front 11

Specific Performance

Back 11

A mandatory decree or injunction that orders a contracting party to perform that which he has promised under the contract. The purpose is to give the injured party the benefit of actual performance.

Cha Cha Is My Favorite Dance
1) C - there must be a contract between the parties
2) C - Certain and definite terms must be contained in the contract so the court can determine what specific performance would complete the agreement.
3) I - Inadequate remedy at law such that money damages are insufficient to compensate for plaintiff's loss
4) M - Mutuality of remedy is not necessary, only mutuality of performance.
5) F - Feasibility of enforcement - the court must be competent to enforce the remedy.
6) D - Defenses must not be available to the defendant - usually laches, unclean hands, or hardship in the form of balancing the hardships.

Hint 11

C-C-I-M-F-D

Front 12

Rescision

Back 12

A restitutionary contract remedy which restores to the plaintiff any consideration given by the plaintiff to the defendant. The purpose is to restore the status quo ante.

Hint 12

Status quo ante

Front 13

Reformation

Back 13

A reformation is a "contract revision" in equity by which a court modifies or alters a written instrument to make it conform to the parties' previous understanding or agreement. Only proper where there is a valid written agreement and it fails to conform to the agreement between the parties - Mutual mistake or Unilateral mistake.

Hint 13

Mutual or Unilateral Mistake

Front 14

Nominal Damages

Back 14

A small sum awarded for a legal injury without substantial loss or injury. Allows for an action to be maintained even without actual loss.

Hint 14

No actual loss

Front 15

Pecuniary Damages

Back 15

Damages which can be estimated and monetarily compensated.

Hint 15

Estimated & compensated

Front 16

Liquidated Damages

Back 16

Damages established by contract. They must be a reasonable estimate of the actual damages at the time of contract AND actual damages would have been extremely difficult to estimate. Cannot be a penalty.

Hint 16

Contract

Front 17

Writ of Attachment

Back 17

A request of the court that property be held to satisfy a judgment should the plaintiff prevail.

Hint 17

Property

Front 18

Compensatory Damages (in tort)

Back 18

Compensatory damages in tort are the standard and characteristic monetary remedy. They are intended compensate for the plaintiff's loss and to put the plaintiff in as good a position as if the injury had not been inflicted.

General damages (noneconomic losses) - must compensate injuries or losses that would be foreseeable from the wrongful conduct - include pain & suffering, emotional distress, loss of enjoyment of life, etc.

Special Damages (economic losses) - those that are not foreseeable but real just the same. They must be specially pleaded to give notice the defendant intends to claim them. They include wage losses, future loss of earnings, medical expenses, etc.

Requires CFCU - causal, foreseeable, certain, and unavoidable.

Hint 18

P in as good a position

Front 19

Remedies Approach

Back 19

Tort Analysis
-Compensatory Damages (CFCU)
-Punitive Damages (WWM)
-Nominal Damages
-Injunction
-Specific Remedies (restitution, equitable lien, constr. trust)

Contract
-Compensatory (D's promised performance minus P's benefits)
-Consequential damages (foreseeable at time of contracting)
-Restitution,Rescission (status quo ante), Reformation
-Specific Performance (CCIMFD)

Front 20

Inadequate Legal Remedy - Reasons

Back 20

1) Money damages too speculative
2) Damages too speculative (impossible for court to assess)
3) Multiplicity of suits would be required
4) Irreparable injury
5) Prospective tort (the wrong has not yet occurred).

Front 21

Due Process Limitation on Punitive Damages

Back 21

1) Notice to defendant of possible magnitude of punitive damages.
2) Defendant's wealth
3) No more than 10x compensatory damages, unless egregious conduct.

Front 22

Inadequate Remedy - Multiplicity of Suits

Back 22

The wrong which is threatened on numerous occasions or is continuous in nature is a candidate for injunctive relief or other equitable remedy. Equity will be able to accomplish in one suit what would take many suits to accomplish at law.

Front 23

Inadequate Remedy - Irreparable Injury

Back 23

P will be said to have suffered irreparable injury if money damages are not adequate to compensate for injury. Example would be a building encroaching on P's land, since land is considered "unique" and the encroachment cannot be compensated in money damages.

Front 24

Inadequate Remedy - Prospective Tort

Back 24

If a wrong is only being threatened, but has not yet occurred, then there are no money damages to claim.

Front 25

Inadequate Remedy - Damages Too Speculative

Back 25

Where it is impossible for a jury or court to adequately assess the money damages, equitable remedy will be appropriate.

Front 26

Balancing the Hardships

Back 26

Courts will often use a balancing test in equity so that the hardship to the defendant does not greatly outweigh the benefit to the plaintiff.
Where harm to the plaintiff is trifling and inconsequential compared with the hardship to the defendant, the plaintiff will be left to a remedy of damages.

Front 27

Defenses to Injunctive Relief

Back 27

1) Laches - an unreasonable delay in asserting an equitable claim.
2) Unclean hands - Plaintiff will generally be denied equitable relief where they are complicit or guilty of misdeeds in the matter.
3) No injunctions against crimes or to enforce a penalty. There is an exception for the crime of public nuisance where it endangers the public health or welfare.

Front 28

Special Damages or Economic Losses

Back 28

An injured party is entitled to recover all economic losses proximately caused by the injury, such as loss of earnings (past and future) and medical expenses. This is not taxable, but juries are not so instructed in making award decisions.

Front 29

General Damages or Noneconomic Losses

Back 29

Pain & suffering - past, present, and future - emotional anguish, loss of enjoyment of life.

Front 30

Foreseeability of Compensatory Damages (Consequential Damages).

Back 30

Tested at the time of contract formation, the damages must be reasonably certain and foreseen by both parties (ref. Hadley v. Baxendale).

Front 31

Unavoidability of Compensatory Damages (Duty to Mitigate)

Back 31

The law does not allow for compensation for losses which could have been reasonably avoided.

Front 32

Causality of Compensatory Damages

Back 32

The loss must have been factually caused by defendant's breach of contract.

Front 33

Certainty of Compensatory Damages

Back 33

Contract damages must be sufficiently certain. Future profits are generally considered to be too speculative but may be included in certain circumstances. A new venture would probably be considered too speculative for future profits to be awarded.

Front 34

Liquidated Damages

Back 34

They will be upheld if:
1) At the time of contracting, the damages are considered to be difficult to ascertain, AND
2) The contractually stipulated amount is a reasonable forecast of actual damages.

Front 35

Formula for Compensatory Damages in Contract

Back 35

The value of defendant's promised performance minus whatever benefits the plaintiff has received from not having to complete his own performance on the contract.

Front 36

Reliance Damages in Contract

Back 36

Damages awarded to non-breaching party for their costs in performing on the contract. These are "real" losses in a more tangible sense than losses of expectation to compensate for the benefit of the bargain.

Front 37

Legal Remedy for Contract

Back 37

Money damages for breach of contract.

Front 38

Reformation

Back 38

Also called "contract revision." An equitable remedy by which a court modifies of alters a written instrument to make it conform to the parties' previous understanding or agreement. It is only proper where there is a prior valid agreement between the parties, and the writing fails to conform as a result of mistake or fraud.

Front 39

Mutual Mistake

Back 39

Reformation will be granted where both parties believed at the time of signing that it reflected the underlying agreement (scrivener's error).

Front 40

Unilateral Mistake

Back 40

Reformation will be granted where one party knows the writing does not conform to the parties' actual agreement. Equity may grant reformation to conform the writing to the parties actual agreement.

Front 41

Construction Contract - Damages for Owner Breach

Back 41

1) Contract fully performed - the contract price is awarded as measure of damages to builder.
2) Contract partly performed - builder recovers his actual cost of performance plus benefit of the bargain (profit on the contract).
3) Contract is wholly executory - builder's lost profit determined by cost of expected peformance deducted from contract price.

Front 42

Construction Contract - Damages for Builder Breach

Back 42

1) Builder substantially performed - cost to complete or repair to contract specifications. If completion not practicable, then difference between value of building as built and value if finished per contract.
2) Builder materially breached - damages measured by what owner must pay to complete the building, less anything owing to the builder, plus cost of delay.

Front 43

Part Performance Doctrine in SOF

Back 43

Generally contracts for an interest in or the sale of land must be in writing. HOWEVER, the exception is where there is significant part performance such as payment and possession or improvement or possession. Possession, improvement or payment alone will not be sufficient to remove the case from SOF.

Hint 43

possession, improvement or payment (PIP)

Front 44

Personal Service Contracts and Specific Performance

Back 44

Where services are unique, courts may enforce a promise not to work for anyone else (a negative covenant). HOWEVER, specific performance for personal services will generally not be required since it is tantamount to ordering involuntary servitude.

Front 45

Temporary Restraining Order

Back 45

A TRO requires a showing of immediate and irreparable harm - urgency, usually a posting of a bond, and may be pursued ex parte if notice to other party would create harm.

Front 46

Preliminary Injunction

Back 46

An preliminary injunction which lasts during the pendency of the action, up and until trial or a permanent injunction is issued. The court will consider the following in issuing the injunction:
1) Likelihood of P's success on the merits
2) Adversarial hearing balancing the harms of the injunction being wrongfully granted or wrongfully denied
3) Posting a bond if not already posted through a TRO
4) Necessary to preserve the status quo