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84 Cards in this Set
- Front
- Back
Six Remedies
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1. Injunctive Relief
2. Specific Performance 3. Rescission 4. Reformation 5 & 6. Constructive Trusts & Equitable Liens |
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Injunctive Relief Definition
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Defendant is ordered (enjoined) to do or refrain from doing something
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Injunctive Relief
Threshold Inquiry |
Determine if you're to discuss PERMANENT or TEMPORARY injunctive relief
Permanent Injunction issued after full trial on merits Temporary Injunction issued pending trial on merits If in doubt, go with Permanent Injunction |
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Temporary Injunctive Relief Two- Part Test
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In issue is whether the plaintiff can obtain temporary injunctive relief. To do so, the plaintiff must meet a two-part test:
(i) irreparable injury (discuss facts in time-frame context--need relief now) (ii) Likelihood of success (discuss the probability. Impose bond requirement) |
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Temporary Restraining Order
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Issued pending a hearing to determine whether a temporary injunction should issue
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Test for obtaining a TRO
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In issue is whether the plaintiff can obtain a temporary restraining order. To do so, the plaintiff must met the two-part temporary injunction test, namely:
(i) irreparable injury (discuss facts in time frame context--need relief now) (ii) Likelihood of success (discuss the probability. impose bond requirement) |
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TROs can be issued _________
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Ex Parte
Thus, 1. Notice is not required 2. Adversarial proceeding is not required BUT A GOOD FAITH EFFORT TO DO SO IS REQUIRED |
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TROs are limited to
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10 days
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It is very difficult to get any type of temporary injunctive relief that is ________ in form. This is particularly true for a TRO
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mandatory
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Permanent Injunctive Relief Memorizer
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I PUT FIVE BUCKS DOWN
1. Inadequate legal remedies (money damages aren't enough) 2. Property Right/Protectable Interest 3. Feasibility of Enforcement 4. Balancing of the Hardships 5. Defenses |
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1. Inadequate legal remedies
Three legal remedy alternatives |
1. Replevin
2. Ejectment 3. Money Damages |
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1. Inadequate legal remedies
Money damages inadequate because |
1. too SPECULATIVE
2. defendant is INSOLVENT 3. IRREPARABLE INJURY 4. avoiding a MULTIPLICITY of ACTIONS [spotting pointer-->facts will show a prior history of litigation between the parties] [NOTE: its easier to show money damages are inadequate if protecting an interest in land; e.g., injunctive relief against nuisance, trespass to land] |
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2. Property Right/Protectable Interest
Traditional Rule & Modern Trend |
TR: Equity will grant relief only where a protectable property right is involved
MT: a protectable right will suffice WRITE ABOUT BOTH VIEWS |
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3. Feasibility of Enforcement
Two types of Injunctions |
1. Negative Injunctions (stop something) --> NO enforcement problem
2. Mandatory Injunctions (do something) --> There may be an enforcement problem based on: (i) the difficulty of supervision OR (ii) concern with effectively ensuring complaince |
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Three exam favorite mandatory injunction fact patterns
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1. Act involves the application of great taste, skill or judgment --> Injunction DENIED
2. A series of acts over a period of time --> Injunction DENIED unless plaintiff's case is otherwise great 3. An out of state act is required: (i) Resident Defendant--> Injunction GRANTED (ii) Non-Resident Defendant--> Injunction DENIED |
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4. Balancing of Hardships
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Plaintiff's benefit vs. Defendant's hardship if relief granted
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Four Balancing of Hardship Rules
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1. There must be a GROSS DISPARITY between detriment and benefit
2. Even then, there will be no balancing act if the defendant's conduct was WILLFUL 3. If you do decide to balance the hardships, in whole or in part, consider: GIVING THE PLAINTIFF MONEY 4. Hardship to the PUBLIC is also taken into account [balancing of the hardships is almost always a primary discussion item when the tort is nuisance or trespass to land] |
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5. Defenses
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(i) Unclean Hands
(ii) Laches (iii) Impossibility (iv) Free Speech |
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Unclean Hands
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The "unclean hands" defense is available only if plaintiff's alleged improper conduct is related to the lawsuit (not just a generally bad guy--> MUST RELATED)
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Laches
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1. Laches is a running of a period of time defense. Unlike SOL, however, which involves mere passage of time, laches is concerned with the EFFECT of the passage of time
2. The laches time period will never be greater than the SOL time period (SOL will apply in those instances) |
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The 3 Laches Rules
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1. The clock starts to run when the plaintiff KNOWS of the injury
2. The delay cuts off the right to relief when it is both UNREASONABLE and PREJUDICIAL to the defendant (watched the encroachment happen) 3. If Laches, consider GIVING THE PLAINTIFF MONEY |
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Impossibility
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Impossible for defendant to carry out terms of injunction
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Free Speech
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If the tort is defamation or privacy publication branch tort (false lights, private facts),"", your based answer is: Injunction DENIED based on free speech grounds
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Permanent Injunction MEMORIZER
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I PUT FIVE BUCKS DOWN
1. Inadequate legal remedies 2. Property Rights/Protectable Interest 3. Feasibility of Enforcement 4. Balancing the Hardships 5. Defenses |
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Equity will NOT enjoin _______
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Crimes (but see if the conduct could be characterized as a tort)
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Who will be bound by an injunction?
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1. Parties
2. Employees and agents acting with notice 3. Third persons acting with notice |
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Erroneous Injunction
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1. Still have to obey it
2. Have it MODIFIED or DISSOLVED |
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Contempt
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1. Civil Contempt (to coerce)
-->Money (fine) [ct. may also award damages to P] -->Imprisonment (D can get out by agreeing to comply) 2. Criminal Contempt (to punish) --> Fine --> Imprisonment (can't get out; set period of time) Constitutional safegaurds apply for criminal contempy NO CONTEMPT for noncompliance with a money judgment (exceptions: alimony, child support) |
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Unfair Competition Torts
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1. Trade Libel
2. Intereference with Business Relationships 3. Trade Secret Misappropriation 4. Trademark/Trade Name Infringement 5. Right to Imitate Problem |
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Trade Libel
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The great hesitation equity has about enjoining personal defamations because of free speech DOES NOT carry over to trade libel. In a proper case, injunctive relief will issue
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Interference with Business Relationships
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1. Applies to both existing and prospective relationships
2. Existence of a privilege. Most important facts are: (i) def's persuasion conduct (aggression vs. mere suggestions) (ii) Relationship between the parties (competitors?, close relatives or advisors?) NOTE: harder to get a privilege when interfering with an existing relationship (as compared to a prospective one) |
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Trade Secret Misappropriation
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1. Determine that what the plaintiff has is a trade secret (something not generally available to the public which gives its possessor a competitive advantage)
2. Determine if ti was taken by improper conduct (breach of fiduciary duty?) Who may be enjoined? Taker and 3d party seeking to use it |
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Trademark/Trade Name Infringement
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1. Determine there is a protectable trademark (and w/in scope of protection)
2. Determine that there has been an "infringement) (i) likelihood of confusion (are there similarities) |
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Right to Imitate Problem
RULE |
One has right to freely imitate another's unpatented product
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Right to Imitate Problem
EXCEPTIONS |
1. Deception to the public (then discuss trademark infringement)
2. Improper taking (then discuss trade secret misappropriation) |
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2. Specific Performance
Definition |
Defendant is required to perform the contract
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Specific Performance Memorizer
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Cha Cha Is My Favorite Dance
1. Contract is Valid 2. Contract Conditions of Plaintiff Satisfied 3. Inadequate Legal Remedy 4. Mutuality of Remedy 5. Feasibility of Enforcement 6. Defenses |
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1. Contract is Valid
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P must show K terms with more CERTAINTY and DEFINITENESS than req'd for money damages at law
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2. Contract Conditions of Plaintiff Must be Satisfied
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Conditions satisfied/fulfilled:
1. Already performed 2. ready and able to perform 3. excused from perfoming |
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2. Contract Conditions of Plaintiff Must be Satisfied
TWO FACT PATTERNS |
1. Deficiencies Fact Pattern
2. Time is of the essence clause Fact Pattern |
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2. Contract Conditions of Plaintiff Must be Satisfied
Deficiencies Fact Pattern Threshold Inquiry |
Who is the P?
Is it the seller or buyer |
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2. Contract Conditions of Plaintiff Must be Satisfied
Deficiencies Fact Pattern SELLER as Plaintiff |
1. Can enforce contract if defect is MINOR
2. CANNOT enforce contract if defect is MAJOR, unless he can cure before closing |
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2. Contract Conditions of Plaintiff Must be Satisfied
Deficiencies Fact Pattern BUYER as Plaintiff |
1. Can enforce even if defect is MAJOR
2. CANNOT enforce if defect is VERY MAJOR |
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2. Contract Conditions of Plaintiff Must be Satisfied
Deficiencies Fact Pattern If you grant Specific Performance |
mention ABATEMENT in the purchase price
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2. Contract Conditions of Plaintiff Must be Satisfied
Time is of the essence clause Fact Pattern |
1. Land sale contract with express time of the essence clause
2. Clause will contain a forfeiture provision 3. Partial performance now subject to forfeiture (buyer has made some payments) 4. Buyer makes late payment 5. Buyer brings SP suit |
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2. Contract Conditions of Plaintiff Must be Satisfied
Time is of the essence clause Fact Pattern RESULT |
EQUITY ABHORS FORFEITURE
1. Loss to seller is small 2. Tardiness is de minimus 3. Waiver by Seller 4. Undue hardship on Buyer |
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3. Inadequate Legal Remedy Alternative
Basic Alternative? Why inadequate? |
MONEY DAMAGES
b/c 1. damages are SPECULATIVE 2. D is INSOLVENT 3. MULTIPLE SUITS NECESSARY 4. thing bargained for is UNIQUE |
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3. Inadequate Legal Remedy Alternative
Favorite Bar Exam Issues |
1. Uniqueness problems
2. Liquidated damages clauses |
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3. Inadequate Legal Remedy Alternative
Uniqueness problems fact patterns |
1. If the property is unique, then even if P received money damages, he could not simply go out and buy it
2. Determine whether contract was for the sale of real or personal property 3. Real property always UNIQUE |
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3. Inadequate Legal Remedy Alternative
Uniqueness problems fact patterns [PERSONAL PROPERTY] |
Personal property not unique
EXCEPTIONS: 1. One of a kind or very rare 2. Personal significance to buyer 3. Circumstances make chattel unique at time of litigation |
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3. Inadequate Legal Remedy Alternative
Liquidated Damages Clauses |
A liquidated damages clause does NOT make money damages adequate. Specific Performance is still available, unless the clause provides that this is the "ONLY" remedy
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4. Mutuality of Remedy
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1. Determine and discuss that you have a mutuality fact pattern (D argues that P should not be able to enforce this K against me b/c I could not enforce it against him [i.e., b/c P is a minor])
2. Set out the Rule: "Court will reject the mutuality argument if it feels secure that the plaintiff WILL perform" 3. Grant specific performance and have decree provide for SIMULTANEOUS performance |
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5. Feasibility of Enforcement
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Personal Service Contracts are not specifically enforceable b/c
(i) ENFORCEMENT problem (ii) INVOLUNTARY SERVITUDE |
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6. Defenses
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Equitable Defenses
1. Unclean Hands 2. Laches 3. Unconsicionability Contract Defenses 1. Mistake 2. Misrepresentation 3. Statute of Frauds |
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Unclean Hands
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Unclean hands defense available only if P
s alleged improper conduct is related to the lawsuit |
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Laches
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1. Concerned with the effect of the passage of time (before SOL period)
2. Clock runs when P knows of injury 3. Delay to relief cut off when it is both UNREASONABLE & PREJUDICIAL to D 4. If laches applies, consider giving P money |
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Unconsicionability
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1. More than a bad deal. Must have smell factor facts
2. Tested at the time of contract formation |
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6. Defenses
Bar Exam Favorites Statue of Frauds/Part Performance Doctrine |
Spotting
1. Contract must involve land 2. K will have been oral Discuss the rule: "If one has rendered (i) VALUABLE PART PERFORMANCE (ii) IN RELIANCE ON THE K, this will take the case out of the SoF and SP will be granted |
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What is VALUABLE PART PERFORMANCE
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ANY TWO OF THESE:
1. Payment (in whole or part) 2. Possession 3. Valuable Improvements MODERN TREND includes VALUABLE SERVICES |
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Specific Performance Problem Areas
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1. Equitable Conversion
2. Covenant Not to Compete |
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Equitable Conversion
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Where a valid land sale contract is entered into an equitable conversion occurs upon execution
RESULT: property interest of the buyer and seller are regarded as switched upon execution (only occur between contract execution and closing) |
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Equitable Conversion: Buyer has a _____ property interest
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real
(SP right to the land) |
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Equitable Conversion: Seller has a ____ property interest
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personal
(SP right to money) |
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Equitable Conversion: Death of Seller
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Real Property heirs get nothing
Personal Property heirs get everything (money from purchase price) |
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Equitable Conversion: Damage/Destruction
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Majority Rule: Risk is on the buyer (unless loss brought about by the seller's negligence)
Modern Trend: Risk on seller (unless at time of loss buyer has legal title or possession) |
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Covenant Not to Compete
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Two part test:
1. Covenant must protect a legitimate interest of the person in whose favor it runs. This means the services must be unique. 2. The covenant must be reasonable both in its GEOGRAPHICAL & DURATIONAL scope |
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RESCISSION
Definition |
the original K is considered voidable and rescinded
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Rescission
Two step analysis |
GOOD DOG
1. Determine if there are GROUNDS for rescission 2. Determine if there are valid DEFENSES |
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Rescission
Determine if there are grounds for rescission |
1. Mistake
2. Misrepresentation 3. Coercion 4. Undue influence 5. Lack of capacity 6. failure of consideration 7. illegality |
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Rescission
Determine if there are grounds for rescission Types of MISTAKE |
Mutual Mistake
Unilateral Mistake |
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Mutual Mistake
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Material Fact: Rescission GRANTED
Collateral Fact (going to quality, desirability, of fitness for a particular purpose): Rescission DENIED |
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Unilateral Mistake
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Rescission DENIED
EXCEPTIONS: If the non-mistaken party knows or should have known of the mistake MODERN TREND EXCEPTION: mistaken party would suffer undue hardship if no rescission |
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Misrepresentation
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Rescission Granted:
P must show that they actually relied on the misrepresentation |
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Rescission
Determine if there are valid DEFENSES |
Unclean Hands
Laches NEGLIGENCE DOES NOT WORK (it's not a good defense) |
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Availability of Restitution
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If a P is entitled to rescission has previously rendered performance on the contract (e.g., performance of services, advance on purchase price), he can get compensated for it or get the property back via RESTITUTION
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REFORMATION
Definition |
Changes written agreement to conform wit the parties' original understanding
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REFORMATION
3-step analysis |
VERY GOOD DOG
1. Determine if there is a VALID CONTRACT 2.Determine if there are GROUNDS for the reformation 3. Determine if there are valid DEFENSES |
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2. Grounds for reformation
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1. MISTAKE
(i) Mutual: Reformation GRANTED (ii) Unilateral: Reformation DENIED unless nonmistaken party KNOWS of the mistake 2. MISREPRESENTATION: Reformation GRANTED (i) available for both innocent and intentional misrepresentations. Rewriting reflects expressed intent of the parties |
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3. Determine if there are valid DEFENSES
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1. Unclean Hands
2. Laches Non-defenses: a. negligence of P b. SoF c. Parole Evidence Rule REFORMATION is not allowed were it would adversely affect the rights of a subsequent BFP |
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CONSTRUCTIVE TRUST
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Imposed on improperly acquired property to which defendant now has title. D serves as "trustee" and must return the property to P
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EQUITABLE LIEN
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Imposed on improperly acquired property to which defendant has title. Property will be subject to an immediate court ordered sale. The monies received go back to the P. If the proceeds are less than the 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
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Constructive Trust and Equitable liens only apply where D has _____ to the property
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title
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Four Rules for Constructive Trust or Equitable Lien
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1. Inadequate legal remedy alternative
(i) Basic alternative is money damages (ii) inadequate b/c defendant is insolvent, or for Constructive Trusts, the property is unique 2. Tracing is allowed 3. BFP prevails over plaintiff 4. P will prevail over unsecured creditors (but Def. Judg. has = footing with unsecured creditors) |
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Choice of Remedy between Constructive Trust or Equitable Lien
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1. If prop value up, go with constructive trust
2. If prop value down, go with equitable lien 3. If prop can't be traced solely to P's property, only equitable lien available |