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12 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Before discussing remedies in an essay question
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(1) Determine what substantive law is involved
AND (2) Establish if P has a case |
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FIRST: Evaluate adequacy of LEGAL REMEDIES
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(1) Damages ($)
(2) Legal Restitution (money, replevin, or ejectment) |
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SECOND: if legal remedies inadequate, what about EQUITABLE REMEDIES?
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(1) Equitable Restitution (Constructive Trust or Equitable Lien)
(2) Torts: Injunction (3) Contracts: Specific Performance or Special Remedy (Rescission or Reformation) |
Reason: legal remedies must be analyzed first b/c equitable remedies are NOT available UNLESS P can first show that no adequate legal remedies were available
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ANALYZING TORT PROBLEMS
LEGAL REMEDIES: DAMAGES (1) Compensatory/Actual |
4 Requirements:
(1) CAUSATION"but for" test) (2) FORESEEABILITY (proximate) (3) CERTAINTY (not too speculative/past losses need more certainty/"historical record" of old business/"all or nothing" rule- more likely to happen than not) (4) MITIGATION (P must take reasonable steps) |
NOTE: Form of judgment payment: must be a single lump sum payment discounted to present value and no inflation
NOTE: Economic losses (special damages, i.e., lost earnings) must have sufficient certainty NOTE: Non-economic losses (general damages, i.e., pain and suffering) do not need; jury has more of a free hand BAR ANSWER: "P is entitled to compensatory damages to put him in the position he would have been in had this wrong and resulting injury not occurred. On these facts...(include common sense fact application here)" |
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ANALYZING TORT PROBLEMS
LEGAL REMEDIES: DAMAGES (2) Nominal Damages |
-awarded when P can prove no actual damages
-can be combined w/punitive damages |
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ANALYZING TORT PROBLEMS
LEGAL REMEDIES: DAMAGES (3) Punitive Damages |
Punish D - 3 RULES:
(1) Need compensatory or nominal first (restitution in certain cases) (2) Fault must be more than just negligence (3) amount awarded will be in proportion to actual damages (limit of 9x unless extreme) *wealthy Ds pay more punitive damages, since punitive damages meant to punish |
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ANALYZING TORT PROBLEMS
LEGAL REMEDIES: LEGAL RESTITUTION (D should not be unjustly enriched) (1) Money |
-based on benefit to D (compared to legal damages)
-can NOT be awarded both compensatory and restitutionary damages (mention both on BAR and go with larger) -punitive may be attached ONLY if TORT action |
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ANALYZING TORT PROBLEMS
LEGAL REMEDIES: LEGAL RESTITUTION (2) Replevin |
Recovery of specific PERSONAL property
2-Part Test: P has right to possession, BUT there is a wrongful withholding by D "Timing": P can recover chattel BEFORE trial, but will have to post bond / D can keep chattel until after trial but has to post redelivery bond Sheriff repossesses property for P Almost always coupled w/$ damages for lost use or benefit during time of detention |
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ANALYZING TORT PROBLEMS
LEGAL REMEDIES: LEGAL RESTITUTION (3) Ejectment |
Recovery of specific REAL property
same test as replevin except real property instead of personal available ONLY against D who has possession of property sheriff ejects D from property almost always coupled w/$ damages for lost use or benefit during wrongful witholding |
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ANALYZING TORT PROBLEMS
EQUITABLE REMEDIES: EQUITABLE RESTITUTION (1) Constructive Trust |
Court imposed obligation on D to convey specific property to P
-D has title and serves as "trustee" with one obligation: to deliver... -Money damages not sufficient b/c property unique |
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ANALYZING TORT PROBLEMS
EQUITABLE REMEDIES: EQUITABLE RESTITUTION (2) Equitable Lien |
Court imposed security interest in specific property owned by D
-D has title and property will be subject to an immediate court-directed sale -Monies go to P -If proceeds less than FMV of property when taken, a deficiency judgment will be issued for difference and can be used against Ds other assets -Money damages not sufficient b/c D insolvent |
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ANALYZING TORT PROBLEMS
EQUITABLE REMEDIES: EQUITABLE RESTITUTION (3) General Equitable Restitution Notes |
-Tracing allowed
-BFP prevails over P; P prevails over unsecured creditors |
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