Equity

Front 1

Torts Equitable Remedies

Back 1

1. Injunctive Relief
2. Constructive Trust
3. Equitable Lien

Front 2

Contract Equitable Remedies

Back 2

1. Specific Performance
2. Rescission
3. Reformation

Front 3

Injunctive Relief

Back 3

Defendant is ordered (enjoined) to do or to refrain from doing something

Front 4

Permanent Injunction

Back 4

Injunction issued after a full trial on the merits

If in doubt as to what kind of injunction it is, go with permanent injunction

Front 5

Preliminary Injunction

Back 5

Injunction issued pending a trial on the merits

Front 6

Preliminary Injunction Test

Back 6

1. P must establish irreparable injury while waiting for a full trial on the merits and therefore, needs an injunction now
2. P must establish his likelihood of success at a full trial on the merits. Court should impose a bond requirement on P to reimburse D if the injunction injures him and the P doesn't succeed

Balancing of the Hardships: irreparable injury to the P will be weighed against any hardship the temporary injunction would impose on D

Front 7

Temporary Restraining Order

Back 7

Injunction issued pending a hearing to determine whether a preliminary injunction should issue (limited to 10 days, 14 days in federal court)

The test for a TRO is identical to the preliminary injunction test but can be done ex parte. Thus:
1. Notice is not required
2. Adversarial procceding is not required

HOWEVER, if there is an opportunity to give the D notice and a chance to appear to contest, a good faith effort must be made to do so

Front 8

Permanent Injunction Requirements

Back 8

IPFBD - I Put Five Bucks Down
1. P must establish that there is no viable legal remedy (inadequate remedy at law i.e. money damages aren't sufficient)
2. P must establish that there is a protectible interest involved
3. P must establish that it is feasible to enforce the injunction
4. The balance of hardships weighs in P's favor (D's burden)
5. Defenses (D's burden)

Front 9

Negative Injunction

Back 9

Stops D from doing something

No enforcement problems

Front 10

Mandatory Injunctions

Back 10

Forces D to affirmatively perform some act

There may be enforcement problems based on the difficulty of supervision or concern with effectively ensuring compliance

Front 11

Reasons that Monetary Damages would be Inadequate

Back 11

1. Irreparable injury (an injury related to unique property is irreparable injury)
2. Money damages are too speculative
3. There is a continuing wrong that would require a multiplicity of lawsuits to remedy
4. D is insolvent

Front 12

Favorite Mandatory Injunction Fact Patterns

Back 12

1. A complex act that involves the application of great taste, skill or judgment - Injunction denied
2. A series of acts over a (long) period of time - Injunction denied
3. An out of state act is required - If D is a resident, injunction granted - If D is a nonresident, injunction denied

Front 13

Balancing of Hardship Rules

Back 13

1. There must be substantially more hardship than benefit
2. Even then, there will be no balancing if D's conduct was willful
3. Consider giving P money if you do balance the hardships
4. Hardship to the public is also taken into account
- First discuss D's hardship
- Second discuss the public's hardship
-Third deny the injunction (90% of the time)
-Fourth award the P some money

When the tort is nuisance or trespass to land, the balancing of the hardships is almost always a big discussion topic

Front 14

Defenses against a Permanent Injunction

Back 14

1. Unclean Hands
2. Laches
3. Free Speech

Front 15

Unclean Hands Defense

Back 15

P's improper conduct will cut off the right to equitable relief

HOWEVER, the P's bad conduct must be related to the lawsuit (still talk about it if its not related)

Front 16

Laches

Back 16

An inequitable delay by P in seeking equitable relief cuts off the rights to it

Test:
1. Clock starts to run when P knows of the injury
2. Delay must be both unreasonable and prejudicial to the D

If laches defense applies, consider giving the plaintiff money damages

Front 17

Free Speech Defense

Back 17

If the tort is defamation or a privacy publication branch tort (false lights, private facts, etc), the best exam answer is, injunction denied based on free speech grounds

Front 18

Constructive Trust

Back 18

An equitable remedy imposed on improperly acquired property to which D now has title.

D must return the property to P

Front 19

Equitable Lien

Back 19

Equitable remedy imposed on improperly acquired property to which defendant now has title.

Property will be subjected to an immediate court directed sale. The proceeds of the sale go to P

If the proceeds of the sale are less than FMV of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D's other assets (deficiency judgment)

Front 20

Rules for Constructive Trusts and Equitable Liens

Back 20

1. There must be an inadequate legal remedy (usually D is insolvent or the property is unique)
2. Tracing of assets is allowed
3. BFP's prevail over the P
4. When these remedies are imposed, P has superior rights over D's other creditors to the property involved

Front 21

Choosing between Constructive Trust and Equitable Lien

Back 21

1. If the property value subsequent to the taking goes up, choose constructive trust
2. If the property value subsequent to the taking goes down, go with an equitable lien
3. When the D's property cannot be traced solely to P's property, only an equitable lien is available

Front 22

Specific Performance

Back 22

D is required to perform the contract

Front 23

Specific Performance Test

Back 23

VPIFD - Very Poor If I Fail Dis
1. P must show that the contract is valid
2. P must be able to show his performance is assured (either already has performed or is ready and able to perform)
3. P must show there is no viable legal remedy
4. P must show it is feasible to enforce the contract
5. Defenses (D's burden)

Front 24

Specific Performance for Real Property

Back 24

Real property is ALWAYS unique, even if every parcel of land is made to look identical.

Seller's of land can get specific performance even though all they get is money

Front 25

Specific Performance for Personal Property

Back 25

Personal property is NOT unique, UNLESS:
1. It is one of a kind or very rare
2. It has a personal significance to the buyer
3. The circumstances at the time of litigation make the chattel unique (i.e. severe shortage of chattel at time of litigation)

Front 26

Specific Performance for Personal Services Contracts

Back 26

Personal service contracts are NOT specifically enforceable because there would be enforcement problems and it looks like involuntary servitude

HOWEVER, covenants not to compete are enforceable if:
1. The services are unique, AND
2. The scope (geographic and duration) is reasonable

Front 27

Defenses to Specific Performance

Back 27

1. Unclean Hands
2. Laches
3. Unconscionability (more than just a bad deal; tested at time of contract formation)
4. Mistake
5. Misrepresentation
6. Statute of Frauds

Front 28

Rescission

Back 28

Where the original contract is voidable, the remedy is rescission

There must be:
1. Grounds for rescission, AND
2. No valid defenses

Front 29

Grounds for Rescission

Back 29

1. Mistake
2. Misrepresentation
3. Coercion
4. Undue influence
5. Lack of capacity
6. Failure of consideration
7. Illegality

All of these grounds relate to contract formation

Front 30

Mutual Mistake

Back 30

If it is about a material fact - Rescission is granted

If it is about a collateral fact (going to quality, desirability, or fitness of property for a particular purpose) - Rescission is denied

Front 31

Unilateral Mistake

Back 31

Rescission is denied, UNLESS: the non-mistaken party knows or should know of the mistake

Modern Trend Exception: if the mistaken party would suffer undue hardship as a result of the mistake if no rescission, then rescission is allowed

Front 32

Misrepresentation

Back 32

If P shows that he actually relied on the misrepresentation - Rescission granted

Front 33

Defenses to Contract Rescission

Back 33

1. Unclean hands
2. Laches

Negligence of P is NOT a good defense

Front 34

Restitution after Contract Rescission

Back 34

If P is entitled to rescission but has previously rendered performance on the contract, he can get compensated for it or get the property back via restitution

Front 35

Reformation

Back 35

Changes in the written agreement to conform with the parties original understanding

Analysis:
1. Determine if there is a valid contract
2. Determine if there are grounds for reformation
3. Determine if there are any valid defenses

Front 36

Grounds for Reformation

Back 36

1. Mistake; Mutual = reformation granted; Unilateral = reformation denied unless non-mistaken party KNOWS of the mistake (should have known exception doesn't apply)
2. Misrepresentation; reformation granted for both innocent and intentional misrepresentations. Rewriting reflects the expressed intent of the parties.

Front 37

Defenses to Reformation

Back 37

1. Unclean Hands
2. Laches

Reformation is NOT allowed where it would adversely affect the rights of a subsequent BFP