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40 Cards in this Set

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Quasi K defined
Quasi K is a legal restitutionary remedy that awards plaintiff that sum of money measured by the REASONABLE VALUE of def’s ILL-GOTTEN GAIN. Recovery is limited to the reasonable value of goods or services supplied by plaintiff to D. Alternatively, unjust benefit may be measured by difference between the present value of D’s property and the value before plaintiff conveyed benefit. I.e. diff between present value of house and value before plaintiff performed repairs.
Constructive Trust defined
Constructive trust is an equitable remedy, implied in law and imposed when the retention of prop by def would result in UNJUST ENRICHMENT. Title must be held by D. Some authorities require that legal remedies be inadequate.
Tracing of Commingled Funds Defined
Where funds have been commingled with other funds, tracing allows the plaintiff to obtain an equitable lien only to the extent of the lowest intermediate balance.
Equitable Lien Defined
An equitable lien is an equitable claim on property imposed by law to prevent UNJUST ENRICHMENT. To impose an equitable lien on D’s property to secure a debt, it must be shown that
1) The wrongdoer misappropriated plaintiffs property under circumstances creating a debt or obligation to pay
2) Plaintiff’s property can be TRACED to property held by D
3) Retention of the property would result in unjust enrichment.
Remedies Q order/sequence
1) Legal remedies
2) Restitutionary remedies
3) Equitable remedies
Available remedies in tort
6
1) Legal Remedies
(a) Damages. 3 types: compensatory, nominal, punitive
2) Legal Restitutionary Remedies
(a) Restitutionary damages
(b) Replevin
(c) Ejectment
3) Equitable Restitutionary Remedies
(a) Constructive Trusts
(b) Equitable Liens
4) Equitable remedies
(a) Injunctive relief
Compensatory damages require
1) Causation
2) Foreseeability
3) Certainty
(a) Damages may not be speculative
(b) “all or nothing rule” for future damages require plaintiff show damages more likely than not.
4) Unavoidable
(a) Plaintiff has a duty to mitigate
Award of damages must be single lump sum payment, discounted to present value.
Punitive damages require
1) Punitive damages are awarded to punish the defendant. Punitive damages require plaintiff was awarded compensatory, nominal or restitutionary damages. Punitive damages require Ds fault must be greater than mere negligence.
2) Punitive damages must be proportionate to actual damages. Supreme Court has limited damages to a single digit multiple of actual damages.
Restitutionary damages basic concept
Restitutionary damages are based on a theory that D should not be unjustly enriched.
Measure of legal restitutionary damages
Legal restitution is based on the value conferred to D. i.e., trucking co drives across road on P’s vacant property. No damage to P but D was unjustly enriched. Restitution available.
Both compensatory and restitution may be available to P, but P must ELECT remedies before jdgmnt. Award P the greater measure of damages.
REPLEVIN
“legal” restitutionary remedy
1) Replevin allows P to recover POSSESSION of specific PERSONAL PROPERTY.
2) Replevin requires
(a) P has right to POSSESSION
(b) WRONGFUL WITHHOLDING by D
3) Couple Replevin with damages (compensatory or restitutionary) for lost use or benefit to D.
Timing & Procedure of Replevin Recovery
1) P can recover chattel before trial if P first posts a bond. But,
2) D can immediately recover by posting a REDELIVERY BOND
3) Note: sheriff repo’s the property for P.
EJECTMENT
“legal” restitutionary remedy
1) Ejectment allows P to recover POSSESSION of specific REAL PROPERTY.
2) Ejectment requires
(a) P has right to POSSESSION
(b) WRONGFUL WITHHOLDING by D
3) Ejectment only avail against D in POSSESSION of property.
4) Note: sheriff ejects D from property.
5) Couple Ejectment w damages (compensatory or restitution) for lost use or benefit to D
CONSTRUCTIVE TRUSTS
“Equitable” restitutionary remedy
Define
Constructive trust imposed on improperly acquired property to which D has title.
D serves as “trustee” and must return the property to P.
As an equitable remedy, constructive trust requires P show inadequate remedies at law. insolvent D or property unique
EQUITABLE LIENS
“Equitable” restitutionary remedy
Equitable lien is imposed on improperly acquired property to which D has title. Property will be subject to an immediate court-directed sale w proceeds to P. DEFICIENCY JUDGMENT avail if proceeds insufficient. Deficiency judgment can be used against D’s other assets.
As an equitable remedy, equitable lien requires P show inadequate remedies at law.
BFP & creditors w/r/t equitable restitutionary remedies
1) BFP prevail over equitable lien or constructive trust
2) Plaintiff with equitable lien or constructive trust prevails over UNSECURED CREDITORS.
Equitable remedy
Injunctive Relief
Threshold inquiry—permanent or temp
Permanent injunction issued only after full trial on the merits.
Temporary injunction (preliminary, interlocutory) issued PENDING trial on the merits.
Prelim injunction requires
3 elements
Preliminary injunction requires P show
1) Risk of irreparable injury
2) And likelihood of success on the merits.
3) Court may impose bond requirement on P to protect D in event P fails on the merits.
Preliminary injunction irreparable injury requirement
P must show injury in the specific timeframe before trial. Risk of immediate irreparable injury if prelim I not granted.
TRO defined
TRO issued pending hrng on prelim I. TRO may issue ex parte, but P must make good faith effort to provide D notice and opportunity to be heard.
TRO limited to 10 days.
Permanent Injunction requires:
5 parts
1) Inadequate legal remedy
2) Property rights/protectable interest
3) Feasibility of enforcement
4) Balance hardships
5) Defenses
Permanent injunction: inadequate legal remedies—what are they
1) Replevin, Ejectment, money damages
Think: unable to locate the chattel, D could file redelivery bond & run off. Sheriff may refuse to act, i.e. eject D’s structure only slightly encroaching on P’s land. Inadequate legal remedies because too speculative, insolvent D, or irreparable injury. Where injury to unique property, land, heirloom, compensatory damages inadequate.
Permanent Injunction: property right/protectable interest requirement
1) Traditional rule: equity will grant relief only where a protected prop interest involved.
(a) Today, property interest broadly construed, trademark, etc.
2) Modern rule: equity grand relief wherever a legitimate protectable interest involved.
Permanent Injunction: feasibility of enforcement requirement
1) No enforcement for negative injunction
2) Where, mandatory injunction, imposing on D an affirmative duty to act, enforcement problem based on
(a) Difficulty of supervision or
(b) Concern w effectively ensuring compliance.
3) Look for performance involving great taste, skill, or judgment.
4) Injunction for specific performance on K for personal svc denied
Discuss construing order as a negative injunction to avoid enforcement problems.
Permanent injunction: balancing hardships requirements
1) Balance plaintiff’s benefit against hardship to D if relief granted.
2) There must be a gross disparity between detriment and benefit.
3) Also consider hardship to public
4) No balancing where D’s conduct was willful.
Permanent injunction:
Defenses
(5)
1) Unclean hands
(a) Unclean hands defense available only if Ps alleged improper conduct is related to the lawsuit.
2) Laches
(a) where P knows of the injury and unreasonably delays seeking relief, resulting in prejudice to def. Damages still available.
3) Impossibility defense if impossible for D to comply with Injunction
4) Free speech defense. Injunction denied on free speech grounds.
I prefer free base dope!
Injunctions
5) Inadequate legal remedies
6) Property right or protectable interest
7) Feasibility of enforcement
8) Balance hardship—award damages
9) Defenses: laches, unclean hands, impossibility
Available remedies in contract
Nine!
1) Legal remedies
(a) Damages
2) Legal Restitutionary remedies
(a) Restitutionary damages
(b) Replevin
(c) Ejectment
3) Equitable Restitutionary Remedies
(a) Constructive trust
(b) Equitable lien
4) Equitable remedies
(a) Specific performance
(b) Rescission
(c) Reformation
Compensatory damages in K
Compensatory damages require 1) causation 2) Foreseeability 3) ccertainty4) unavoidability (mitigation)
Consequential damages are available where reasonably foreseeable at time of formation.
Punitive damages not allowed in K, but where D conduct willful, possible to characterize as tort.
Liquidated damages require
Damages difficult to ascertain at time of formation
And provision is a reasonable forecast of anticipated damages.
If liquid damages valid, no actual damages
If provision invalid, then actual damages available.
Liquidated damages clause does not make money damages inadequate SPECIFIC PERFORMANCE STILL AVAILABLE
Specific performance, equitable remedy in K, requires
6 part
1) Valid contract
2) Conditions of P must be satisfied
3) Inadequate legal remedy alternative
4) MUTUALITY of remedy
5) Feasibility of enforcement
6) defenses
Specific performance: defenses
1) equitable defenses: laches unclean hands unconscionability,
2) contract defenses: mistake, misrepresentation, STATUTE OF FRAUDS
(a) However, if one has rendered 1) valuable pt performance 2) in reliance on the K, SOF is satisfied and specific performance will be granted.
Equitable conversion in K for land
7) Equitable conversion occurs when K for land sale is signed, thus granting buyer equitable title to property and seller w an equitable interest in the personal property ($$).
Cha Cha Is My Favorite Dance!
Specific Performance requires
1) Contract validity
2) Conditions in K for P are satisfied
3) Inadequate legal remedy
4) Mutuality of remedies
5) Feasibility of enforcement
6) defenses
Rescission: equitable remedy in K requires
Under Rescission the original K is deemed voidable and rescinded. Rescission requires
1) adequate grounds for rescission:
(a) mistake; misrepresentation; coercion; undue influence; lack of capacity; lack of consideration; illegality
2) rescission unavail where equitable DEFENSES apply
Unilateral mistake as a grounds for rescission
Unilateral mistake is not a ground for rescission. Unilateral mistake is a ground for rescission where the non-mistaken party knows or should have known of the mistake. Under the MODERN TREND, grounds for rescission exist where the mistaken party would otherwise suffer UNDUE HARDSHIP
Rescission and other remedies?
1) Where P first sues for damages, rescission unavail.
(a) Suit for damages deemed affirmance of K
2) But where P first seeks recession, damages allowed.
3) If P seeking rescission previously rendered performance, restitution avail to the extent of unjust enrichment.
Reformation: equitable remedy in K define & requires
Reformation changes the WRITTEN agreement to conform to the parties ORIGINAL understanding
Reformation requires
1) Valid K
2) Grounds for reformation
3) DEFENSES?
Grounds for reformation include mistake; misrepresentation. Unilateral mistake not grounds for reformation unless other knew--NOT SHOULD HAVE KNOWN like recession.
Good Dog
Rescission, an equitable remedy at K, requires
3) Grounds for rescission
4) Defenses unavail
Very Good Dog
Reformation requires
4) Valid K
5) Grounds for reformation: Mistake (unilateral only if other KNEW); misrepresentation
6) Defenses unavail.