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50 Cards in this Set

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Damages: rstitution (money, replevin, ejectment)
legal remedies
Restitution (constructive trust, equitable lien), injunction
equitable remedy
Tort Problems:

(injury to ∏ arising out of the tort) (identify the tort committed and whether ∏ is entitled to relief)
damages
tort remedies:
compensatory damages that seek to put ∏ back where he was before the tort (look to the past) (based on injury or harm to ∏) (“∏ is entitled to compensatory damages to put her in the position she would have been in had this wrong not occurred. On these facts . . .”)
1. 4 requirements: actual causation, foreseeability, certainty, mitigate
2. Form: one lump sum, discounted to present value, w/o inflation
damages - actual damages
Tort remedies:

a small, or nominal, amount of money available when no actual damages can be proved (serve to vindicate/establish the ∏’s rights)
damages - nominal damages
torts remedies:

punitive damages punish and deter; they do not compensate for actual injury suffered by the ∏ (there must be some proportionality between actual or nominal damages and punitive damages; wealthy ∆s pay more than poor ∆s)
damages - punitive damages
tort remedies:

(benefit unjustly retained by the ∆; does not need to be any injury to ∏)
restiution
tort remedies:

look for benefit to the ∆ (“waive the tort and sue in assumpsit”) (if both compensatory and restitutionary remedies are available, ∏ must elect the one that will give him the greatest recovery) (never available for encroachment or nuisance)
restitution legal remedy: money
tort remedy:

recovery of specific personal property (∏ has a right to possession and ∆ wrongfully withheld the property) (preliminary hearing – is there a colorable claim? Then  posts bond (but  can counter w/own redelivery bond) and sheriff recaptures) (almost always coupled with damages for lost use or the benefit to the ∆ during the time of wrongful detention) (right to replevin cut off by transfer to BFP)
restiution legal remedy: replevin
tort remedy:

recovery of specific real property (∏ has a right to possession, wrongful withholding by ∆, and ∆ has actual possession of the property) (almost always coupled with damages)
restiution legal remedy: ejectment
tort remedy:

obligation to convey specific property to the ∏ (∏ should select if the property goes up in value subsequent to the taking) (∆ has improperly acquired title to property at the expense of ∏, unjust enrichment, and no adequate remedy at law)
restitution equitable remedy:

constructive trust
tort remedies:

security interest in specific property (∏ should select if the property value goes down subsequent to the taking) (∆ wrongfully acquired titled to property or has improved property he already owned using money or property wrongfully obtained from the ∏, ’s retention = unjust enrichment,  has no adequate remedy at law) (property will be subject to an immediate court-ordered sale and the money recovered will go to ∏) (deficiency judgment will issue for the difference between the proceeds of the sale and the FMV of the property when it was taken)
restiuttion equitable remedy:

equitable lien
tort remedies:

(i.e., if ∆ sells the property, court will trace the profits)
a. When the ∆’s property cannot be traced back to only the ∏’s property (e.g., funds are commingled or ∆’s property was merely improved with ∏’s property), only an equitable lien is available
b. Lowest intermediate balance rule: if withdrawals from a commingled bank account causes the balance to sink below the ∏’s claim, the lien is limited to the lowest account balance between the time of wrongdoing and the suit
restitution equitable remedy:

tracing rules
tort remedies:

4. BFPs prevail over ∏
restiuttion equitable remedy
tort remedies:

i. Order to the ∆ to refrain from doing something (negative injunction); or
ii. Order to the ∆ to do something (mandatory or affirmative injunction)
iii. TRO:
1. Irreparable harm; likelihood of success; hardships balance in ’s favor (hardship is serious),  post bond just in case wrong.
inunctions
contract remedies:

(injury to ∏ arising out of a breach of contract by the ∆) (analyze the underlying cause of action and discuss whether ∏ is entitled to relief) (ask: which party to the K committed the breach and how did they do it?)
damages
contract remedies:

this is the benefit ∏ expected to get out of the K – make  whole (look to the future)
1. 4 requirements: causation, foreseeability, certainty, mitigate
damages: compensatory damages
contract remedies:

these are damages to ∏ in addition to the lost expectation (they must be foreseeable at the time the K was entered into)
damages: consequential damages
contract remedies:

these are damages specified in the K; for a liquidated damages clause to be valid, actual damages must be difficult to calculate at time of K formation, and the amount specified in the clause must be a reasonable approximation/forecast
1. If the clause is invalid, it is called a penalty
2. If the parties’ intent is clearly expressed, liquidated damages may serve as a true alternative to performance
damages: liquidated damages
contract remedies:

prevent unjust enrichment:
restitution
contract remedies:

benefits unjustly retained by ∆ when there is a void or unenforceable contract, or where the ∏ chooses not to sue on the contract, permitting recovery in quasi-K or quantum meruit
1.  non-breach: restitutionary damages for the services rendered based on value to  (can be higher than K price)
2.  breached: Traditional: cannot recover; modern – recover restitution, but not more than K price
restitution: money restitution
contract remedies:

ii. Replevin
iii. Ejectment
iv. Equitable Restitution:
1. Constructive Trust
2. Equitable Lien
restitution
contract remedies:

order to the defendant to specifically perform the contract
specific performance
contract remdies:

1. In rescission, the K is void or voidable, and the deal is called off
rescission
contract remedies:

i. Mutual: if there is mutual mistake of a material fact, rescission will be granted; if there is mutual mistake as to a collateral fact, rescission will be denied
ii. Unilateral: rescission generally denied
1. Traditional exception: where the non-mistaken party knew of, or should have known of the mistake
2. Modern trend exception: rescission will be granted if the mistaken party would suffer undue hardship without rescission
rescission: grounds for rescission = mistake
contract remedies:

in order to rely on the grounds of a misrepresentation, the ∏ must show he properly relied on the misrepresentation
i. Innocent: requires reasonable reliance by the ∏
ii. Fraudulent: requires only actual reliance by the ∏
rescission; gounds for rescission - misrepresentation
contract remedies:

i. Unclean hands
ii. Laches
iii. Election of remedies: if ∏ sues for damages first, rescission is not allowed (regarded as an affirmance); if ∏ sues for rescission first, damages are also allowed; ∏ may sue for both, but must elect preferred remedy before judgment
iv. Estoppel
v. Negligence is never a good defense
rescission defenses
contract remedies:

d. Restitution is available if there has been some partial performance under the K and the K is going to be rescinded
e. Legal rescission: if ∏ gives notice of rescission to ∆ and tenders back any consideration received, ∏ may then sue for restitution if ∆ refuses to return something given to him by ∏ under the K
rescission
contract remedies:

(changes a written agreement to conform with the parties’ original understanding
reformation
contract remdies:

1. In reformation, the contract is valid and enforceable, but the written form of the contract is wrong; the contract is rewritten correctly and is then enforced
reformation
contract remedies:

a. Mistake
i. Mutual: reformation will be granted
ii. Unilateral: reformation will be denied, unless the non-mistaken party actually knows about the mistake
b. Misrepresentation: reformation will be granted, and is available for both innocent and intentional misrepresentations
grounds for reformation
contract remedies:

i. Laches
ii. Unclean hands
iii. Sale to BFP
iv. Parol evidence rule, statute of frauds, and negligence are not good defenses
defenses to reformation
(has the ∆ committed a tort, or is he or she about to?) (∏ must first establish that it is entitled to relief)
injunctive relief torts
inadequate remedy at law
is a property right involved
is an injunctive decree feasible
Balance hardhips
Defenses
inunctive relief for torts
i. Damages and money restitution: damages may be inadequate because they are too speculative or too small to compensate fully for the actual injury; the ∆ might be insolvent; there may be a multiplicity of suits, the injury may be irreparable, there may be injury to land.
ii. Replevin: replevin may be inadequate if the ∆ can keep the property by posting a redelivery bond; or the sheriff may be unable to find the property
iii. Ejectment: ejectment (plus mesne damages) is an adequate remedy if the ∏ only wants a trespassing ∆ off his land; ejectment is inadequate if ∏ wants removal of an encroaching structure
inunction relief for torts:
are the legal remedies inadequate
(the traditional rule is that ∏ must have been protecting an actual property right; the modern trend is to expand the traditional rule to include any protectable interest)
i. At common law, only actual property rights were protected
ii. Most courts today protect both property interests & rights and personal rights by injunction
injunctive relief in tort: is a property right involved
(negative injunctions require less court supervision and no enforcement issues)
i. Must the court exercise too much supervision?
ii. Is a negative (stop) or mandatory (make) injunction appropriate?
injunctive relief in tort: is an injunctive decrea Feasible
(court will balance the detriment caused to the ∆ against the benefit gained by the ∏) (if there is a gross disparity between the detriment and the benefit, the court will not issue the injunction; instead, the court will consider awarding money damages)
injunctive relielf in tort: should the hardship be balanced
i. Laches: the effect of passing of time (has the ∏’s inaction encouraged or allowed the ∆ to act to his detriment?)
ii. Unclean hands: ∏ must come into equity with “clean hands”; improper conduct must be related to the transaction in the suit
iii. Freedom of speech: 1st amendment rule against prior restraint; see exceptions for national security, and for trade libel, particularly in conjunction with another business tort
iv. Criminal act: “Equity will not enjoin a crime”
injunctive relief in tort: defenses
inadequate legal remedy: valid K with sufficiently definate terms: specific performance decree feasible; mutality of oblgiation; defenses
specific performance relief in K requirements
i. Damages and money restitution: damages may be too speculative or too small to compensate fully for the injury;  insolvent?; there may be a multiplicity of suits; there may be an irreparable injury; ∏ may seek to recover a unique chattel; a K for the purchase or sale of land may be involved (uniqueness at litigation)
ii. Replevin: ∆ can post a redelivery bond; the sheriff may be unable to find the property
iii. Ejectment: (typically not involved in an action on a K)
specific performance K: are the legal remedies inadequate
i. Remember that the terms of a K may be sufficiently certain to constitute a valid K, but an equity court may still be unwilling to grant SP of that K if it cannot tell exactly what the parties intended
ii.  has satisfied conditions
1. seller – enforce K if defect is minor or if major & can cure b/f closing
2. buyer – enforce K even if major defect – abate contract price
3. time is of the essence – ct will avoid forfeiture if loss to seller is small, tardiness is de minimis, waiver by accepting pmt, buyer = undue hardship
specific performance K: are the terms of hte Valid K sufficiently definite and certain
i. Is there jurisdiction over the parties or the property? (watch for property outside the state)
ii. Is there too much supervision by the court?
iii. Is a negative injunction appropriate? (watch for personal service Ks where the employee tries to breach and work for a competitor)
specific performance K: is a specific performance decree feasible
i. At common law, the test was whether the remedy of SP was mutually available at the time of contracting
ii. Modern test: the security of performance test (ask whether the performance of the ∏’s obligations can be secured to the satisfaction of the court) “can & will”
specific performance K: is the mutuality of obgliation
i. Laches
ii. Unclean hands
iii. Freedom of speech
iv. Hardship: in a suit to specifically enforce a K, a court of equity may refuse to enforce a K in which there is inadequate consideration (low price) and there are onerous terms
specific performance K: defenses
i. ROL on buyer (traditional); whoever has ROL gets insurance proceeds
equitable conversion
i. Negative covenants – 1) protects legit interest of ; 2) reasonable for duration & geographical scope
employee K's
issued pending a trial on the merits, requires:
irreperable injury, plaintiff has a likliehood of success on the merits, hardhship balance in tehp plaintiffs favor, plaintiff should be required to post a bond
temporary injunction
issued pending a hearing to determine whether a temporary injunction should issue and not to exceeed 10 days: same as a temporary injunction
temporary restraining order
if there has been a full hearing on the merits, requires: notice to opponent, inadequacy of legal remedies, a property right, feasibility of enforcement, balance hardships, defenses
permenant injunction