Equity

Front 1

what is the rightful position

Back 1

awarded fully compensate p to his rightful position prior to the injury.

Front 2

what is compensatory damages.


what is exception.

Back 2

compensatory damages=
---- put the pl in their rightful place.

gen. damages are presumed.
1. lost earnings
2. emo. distress
3. P & S
4. Loss of consortium
5. Enjoyment of life
6. loss of rep.
7. intangible harm.

---gen. will be overturned if
1. not supported by evid.
2. shocks the conscious
3. prejudice or misconduct of jury.

Front 3

what is special damages.
--must show want.

Back 3

damages that naturally flow from the wrongful tort.
---must be specifically plead.
1. medical expenses.
2. hospital bills
3. future med. bills
4. attendant care
5. lost earning.

Front 4

what are the ways to prove prop. value.

2.

Back 4

Market value.
--what a willing buyer is willing to pay for and willing is willing to pay for at arms length.
1. if their is functioning market crt will use that FMV.

cost to replace.
--the person who brings up the theory must prove that the cover would be the same the Market value.

Front 5

what is the capitalized value.

Back 5

lost profits from the stream of income

Front 6

how do you value
1. irreplaceable good
2. one of a kind prop.
3. unique goods.

Back 6

market value / cost to replace - depreciation.

Front 7

when is property valued.
1. stock
2. crops
3. used goods.

Back 7

stocks.
--highest value at time of wrong ( time of trial or filing)

crops
--time of when full grown.

used goods
--Market value at time of breach - depreciation.

Front 8

for settlement if more than one d.

what is the rule for settlement then going to trial with df 2

Back 8

1. Pro Rata
--P can settle, but if another df goes to trial they will only have to pay for percent jury attributes to be their fault.


2. Pro tanto
--trial df will get dollar for dollar credit from the settlement--but will have to make up for any settlement not satisfied claim.

Front 9

lesser of the two rules?

what if there is more than one market value?

Back 9

1. when dont have evid. of market value.

2. use
--market value
--repair/replacement cost
---which is ever less = dont want to over compensate for the wrong.

----2 FMV
value at the time the wrong was committed.---

Front 10

what is the expectations damages in k.

what are the elements.

Back 10

rightful position.
--the gain the pl would have had if but for the breach.

elements.
1. cause of breach
2. expectation of profit must have been foreseeable.

Front 11

what are the options
expectations damages.

expectations.
----what is the exception

Back 11

1. expectation damages.
--put pl in position as if the k was fully performed.

a. get profits straight out if can prove expectations damages were foreseeable.

b. sell to another and get the diff. from breacher.

C. if seller finds out that buyer is insolvent than seller can stop deliver or reclaim goods.

Front 12

reliance damages.

when is it used.

Back 12

Reliance
--out of pocket losses.

use
---when in a losing contract and no profits are to be had.

Front 13

restitution damages.

when is it used.

Back 13

df has unjust enrichment.

non-breaching party has no damages
--can prove damages.

Front 14

what are the elements for special damages.

Back 14

special consequential damages.
must have to prove.

1. duty
2. breach
3. prove w/ reasonable certainty.
4. must be specifically plead.

Front 15

what is the limitation expectation k damages.

Back 15

1. mitigation( not to make the matter worst)

--there is no duty to mitigate but not doing will be off set from judgment.

2. mitigation must be reasonable ( doing or not doing something)

3. df has the burden of proof that mitigation was available.

Front 16

what is the collateral source rule.

Back 16

pl is receiving benefit from another source that is not df.

Front 17

what are the elements to collateral source rule.

---what is the exception.

Back 17

1. benefit received must be from source independent form df.

---exception
1. being paid by co-df is not collateral source.
2. can bring this up in crt.

Front 18

what can df show to reduce the amount that he has to pay out.

Back 18

1. credits for saving.
--expenses that "but for" the df would have to incur.

ex---df had to buy uniforms and now they dont because they dont have to go to work.

Front 19

what is the economic harm rule

what is the exception.

Back 19

Economic harm: can not reover for economic harm in the absence of physical injury.

--if their is economic harm that flows directly from physical injury then can recover.

Front 20

what is needed to recover for special damages from k.

for gen.
for specific.

Back 20

Foreseeability.

1. Gen.
--same k

2. specific.

--communicated to df at the time the k was entered into.

Front 21

what is the lost chance doctrine.

1. def.
2. recoverable value.

Back 21

1. b/c of df tortous conduct pl lost chance of successful recovery or have been reduced by certain percentage.

2. recoverable value is the value of the lost chance not injury itself.

Front 22

what is the new business rule.

Back 22

1. if new business cant sue for lost profits ( there isnt any yet)
--can go off of similar business in the same area or like--

Front 23

what is needed for the liquidated damages.

Back 23

applies to k law.

1. must be reasonable.

2. enforced unless = penalty.

exception--pl choice unless exclusive remedy.

Front 24

when does the interest begin for liquidated damages.

what is the exception.

Back 24

1. possible to compute damages.

2. w/ reasonable exactness.

3. interest = the date the claim files or the date of loss.

4.
---exception
claim in dispute does not make the claim unliquidated.

Front 25

what is the interest of the unliquidated

Back 25

2. recover is based on crt discretion.

Front 26

what is the rule of present cash value.

Back 26

1. judgment amount reduced to present day value.

2. if invested would be the amount pl would have recovered anyways.

Front 27

who can bring a wrongful death suit.

Back 27

1. family members of surviving spouse.

2. by statute.
---loss of services.
---loss of economic benefit.
---funeral expenses.

Front 28

what is survival action.

Back 28

decent estate brings the action.

--any interest that decedent would have been entitled to had he lived.

Front 29

what is restitution
elements.

what is the cause of action.

Back 29

1. df gain
2. pl loss
3. unjust for df to keep benefit.

---cause of action for restitution is unjust enrichment----

Front 30

what is the recover for restitution.

3 remedies.

Back 30

recover is unjust enrichment.

1. quasi contract.=

2. restitution will survive the death of the wrong-doer.

---quatum meruit:
1. reasonable value for the services.

---quantum valebrant
FMV of goods df received.

Front 31

what is the accounting for profits.

---what is the remitter

Back 31

---Df used pl property to turn a profit.

elements
1. --- df acct for profits

2. ---df est. extent of profit.

3. ---hand over profit to pl.

---defense= apportionment--allows df to est. some if not all was gained from something other than the wrongful conduct.

Front 32

what is constructive trust.

Back 32

---an injunctive remedy to order that df retain prop. and not sell it.

---convey title and possession back to pl in whatever form that prop. exists.

Front 33

constructive trust.

---what happens if the property goes up

who gets the advantage----
who has the priority claims---
what is the favorable proof presumption-----

Back 33

if the prop goes up in value----pl is entitled to increase as well.

priority= the constructive trust beneficiary has priority claim over the content.

favorable proof of presumption = favors the victim.

Front 34

constructive trust.

what is the requirement to get a constructive trust.

Back 34

1. legal remedy inadequate.

2. p. must have original title

4. irreparable harm will occurred.

5. crt will balance the hardships

Front 35

what are the obligation based on constructive trust.

Back 35

1. duty to preserve it (not enhance it)

2. dont create waste.

Front 36

how is a constructive trust carried out.

Back 36

1. get order
---injunctive relief

2. proof.
a---first in/first out rule
1a. clear and convincing evidence




3. pl gets prop. back in original or substituted form.

Front 37

--what are equitable tools for.
**Liens
----advantages

Back 37

liens = a judicially created interest in a specific property
(perfect title at time of issue)

advantage.
1. declining prop. = deficiency suit
2. when constructive trust unavailable.

Front 38

--what are equitable tools for.
**Suborgation
----advantages

Back 38

Subrogation--
df has encumber prop. =

Front 39

what is indemnification

v.

contributions.

Back 39

--indemnity = action brought by a party with indirect liability who pays an obligee

--contributions = an action brought by a party with joint liability who pay more than their fair share.

Front 40

what is the lesser of the two rule?

Back 40

--conflicting FMV or cover cost.
--go with the cheapest one.

Front 41

what is injunction.

Back 41

--equitable decree
--refrain from violating pl rights

Front 42

prohibitory order v. compulsory order.

---elements

Back 42

prohibitory = stop from doing something.

compulsory= affirmative acts to do something.

elements---
1. df violated legally protected rights

2.pl suffered irreparable harm.

3. no adequate remedy at law.

4. harm is imminent and immediate.

Front 43

what is preventative injunctive relief

---elements
---certainty requirement.

Back 43

1. forbid df from acting.

2. have harm prevented.

----certainty (must prove)
1. irreparable harm
2. substantially certain
3. remedy at law inadequate.

Front 44

what is ripeness
what does it apply to

Back 44

injunction.
--ripeness = there must be a ripe threat of injury.

Front 45

what is mootness.
mootness factors

Back 45

if the danger is able to reoccur.
1. intent to comply
3. character of past violation.

Front 46

what is reparative injunction.

elements.

Back 46

---injunction that would repair the pl in there rightful position.

elements.
1. restore pl as closely as possible to rightful place.

2. never make pl better off than where they were

3. never leave pl worst off than where they were.

Front 47

what is prophylactic injunction.

Back 47

--alter the way df is acting

--order df to be monitored

--crt making perform the undertaking.

Front 48

when is equity act.

Back 48

1. no remedy at law ( money )

2. rare or impossible to get substitute.

Front 49

when does replevin apply.

elements

Back 49

--only applies to personal property.

elements
1. identify the property

2. replevin must be adequate

Front 50

when is specific performance encouraged.


what are the factors to look at.

Back 50

elements.

1. scarcity & cover

2. inability of pl party to get cover

Front 51

---granting the prelim injunction.

what is equitable discretion.

element.-----
unilateral
bilateral
enforceability

Back 51

1. irreparable harm w/ no adequate remedy at law

2. balancing the harm?
--A. hardship to Df.

3. economic undue hardship.
--bilateral monopoly


--unilateral monopoly
A. P has all the power.

Front 52

Does pl have a duty to mitigate?

Back 52

1. no but pl judgment will be subtracted by what they should have reduced it by.

Front 53

what is the limitation to injunction.

---insolvency.
---

Back 53

1. enjoin speech

2. personal contract

4. litigation

5. cannot enjoin crimes.

6. elections

7. private organizations.

---can enjoin a insolvent person.

Front 54

elements to preliminary injunction.

Back 54

1. Clear and convincing evidence.

2. more likely than not injunction would be granted.

4. balancing the harm.
--harm to pl if denied must outweighs harm to df if granted.

5. timing issue
--need immediate relief.

Front 55

prelim v. temporary restraining order

Back 55

TRO

1. emergency ex-parte (no complaint)

3. must give notice to other party.

4. not appealable (5-15 days)

---if violated = contempt.


prelim
1. full record hearing.

2. testimony

3. need surety bond
(in-case pl is wrong)

6. balance of equities.
P harm v. D. benefits

Front 56

what is the TRO defense

Back 56

1. no notice

2. no irreparable harm
(immediate)

3. restriction on speech.

Front 57

what is declaratory judgment.

elements.

Back 57

declare the rights if the parties under the k.

---dispute btwn two parties
case or controversy
ripe
not moot.

Front 58

what is the diff. btwn

declaratory judgment v. injunctions.

Back 58

declaratory judgment.
--lays out who is right who is not.

injunctions
--will be held in contempt.

Front 59

k law------

what is the reformation

elements .

Back 59

--party actual agreement not reflect agreement.

--equitable relief (crt modifies or alters the writing)

-----elements
1. valid original k
2. in writing
3. fails to express intentions of both parties.

Front 60

k law-----

what is recession.

elements

Back 60

--party want to cancel contract.

--equitable relief(crt makes like k never happen)

elements----

1. material misrep.

2. reliance

3. injury.

Front 61

what is restitution.

element

---what is the exception.

---remedy

Back 61

1. unjust enrichment

element
1. benefit
2. unjust enrichment

quantum meruit --reasonable value of goods or services.

quantum valebant--reasonable value of goods delivered and received

Front 62

resitutionary remedy.

legal v. equitable

Back 62

legal------------restitution

1. quasi K or k at law
implies the promise.

1. recession= cancel the contract.
2. reformation = fix the k








equitable----------restitution
C.E.A.S

constructive trust
--crt order
---separate legal ownership and control of property from its beneficial employment.

equitable liens
--conversion happens places lien on property to get pl get $$ back.

accounting for profit
trying to figure out how much money pl should get.

subrogation--
3rd party pays out person wrong and takes their place.

Front 63

what is the remedy for restitution.

Back 63

1. reasonable value of the goods at the time df acquired them.
(quantum meruit)

2. culpability (intentional or unintentional)

3. disgorgement of profits ( if df wants to keep any of it, must show that they earned it)

or

constructive trust --separation of legal title and control from it beneficial employment.

Front 64

how do you measure remedy in restitution

Back 64

---place item in constructive trust. = separating the legal ownership and control of property from its beneficial employment.

1. quantum meruits ( reasonable value of goods at the time df acquired them.)

2. look at intentions ( culpability matters)

3. burden of proof if df does not wan to have disgorgement of profits.

Front 65

what is the restitution to the k

Back 65

1. reformation if not material

then if material

recession---
--elements
A. damages would be inadequate
B. material misrep.
C. fraud

Front 66

what is equitable protection of restitution.

Back 66

constructive trust.

1. crt implies quasi k, where df is holding property for pl

elements
1. df acquired legal title

2. unjust

3. no adequate remedy at law

4. irreparable harm.
---crt will balance the hardship
(looking df)

Front 67

what is the proof needed for est. trace.

Back 67

p must trace the df wrongful conduct.

1. prop. must be in df possession.

2. prop. is pl

3. even if it is in substituted form.

Front 68

what are the substantive action.

3---------
1. indemnity

2. contribution--

3. suborgation--

Back 68

1. indemnity
--action brought by party with indirect liability who pays and obligee.

2. contribution--
action by party with joint and several liability.

3. suborgation--
paying the pl for wrong committed and steps into pl shoes.

Front 69

what are the legal restitution defenses

Back 69

1. apportionment = d can show benefit was not unjust
---intermeddling defense.

2. bona Fide purchaser= did not have notice.

3. change of position. =
---got benefit w/o notice
---if have to give back = hardship

Front 70

what is the equitable defenses

Back 70

df has burden

1. unclean hands
--limited conduct by df

2. unconsciousability =
A. the k is substantially oppressive

3. estoppel

4. laches ( not about passage of time but event causing delay )
--------------

Front 71

how does the crt enforce their judgment.

Back 71

contempt order.

1. civil = pl holds the key to release or it can not be unreasonable long

2. criminal = punitive purpose
-- must be set funds and time.

Front 72

how does the court collect on the money issue.

preserve asset.

Back 72

1. the crt can garnish wages.

2. appoint a receivership = persons appointed by crt to continue to run df business.