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80 Cards in this Set

  • Front
  • Back
2 requirments for TRO and preliminary injunction
1. Irreparable Harm
2. Establish likelihood of P's success for either specific performance or permanent injunction
How do you show irreparable harm?
Show that P is or will incur irreparable injury while waiting for full trial on merits. And also balance the hardships of irreparable harm the P will suffer to the harm the D will suffer in prelininary injunction is granted
In prelininary injunctions what will the court usually impose
What is purpose of prelininary injunction
to preserve status quo until trial or hearing for preliminary hearing
What is result if P loses injunction
Then D can either sue on the bond for bond amount or sue off the bond if damages are more than bond
If injunction granted and completely wrong can you disobey it?
NO must go into court to modify or dissolve it
2 defenses to injunction
overbroad or vague
When can you get an ex parte TRO
When notice not required because either made a good faith attempt to give notice or prove strong showing to why
How long does a TRO usually last
No longer than 10 days
5 requirments for permanent injunction (I put Five Bucks Down)
I=nadeqaute legal damages
P=rotectable right/protectable interest
F=easiablity of enforcement
B=alance hardship
D=NO defenses
5 ways money damages inadequate
1. too speculative
2. no right to money because tort ony threatended
3. Defendant is insolvant
4. Irreparable injury
5. avoiding multiplity of actions
tRADITIONAL rule of a property right?
traditionally needed a property right and if not then no equity relief
Modern trend regarding P?
Now only need a property interest which is construed liberally
Only time there is problems with feasiability of enforcement and why
Mandatory injunction because difficult of supervision or concern with effectively ensuring compliance
3 situations where injunction will be denied because of its mandatory nature?
1) Act involves application of great taste, skill or judghment
2) Injunction requires series of acts over a period of tim because too much supervision
3) Out of state act is required
When balancing hardships whose hardships is balanced?
P's, D's, and public's
When does there not need to be any balancing
When D;s conduct is WILLFUL
When balancing hardships in part what can be considered
Giving P money
4 defenses to permanent injunction
1. unclean hands
2. laches
3. Impossibility
4. Free Speech
Describe Unclean Hands
Any improper conduct by P related to lawsuit bars P in equity and must go to law
Describe laches defense
WHen P waited too long to bring suit and delay is prejudical to defendant then P barred in equity
Even if laches applies what can P still be entitled to?
WHen does the clock start to run for laches
What is impossibility defense to permanent injunction?
Impossible for defendant to carry out terms of injunction
Who is bound by injunction (4 parties)
A. 3rd persons who have actual notice of order
B. All parties with notice
C. Employees and agents with notice
D. 3rd persons acting in concert with parties
What kind of notice is needed to be bound to injunction?
INFORMAL , do not need official notice
Does a party/person have to obey a erroneous injunction?
YES until modified or dissolved
2 remedies for people not obeying injunction?
1. Civil contempt
2. Criminal contempt
What is civil contempt used for?
To coerce party to act in accordance with court or injunction bvy being fined or put in jail until obey court (hold keys to cell)
What is criminal contempt used for?
When bad thing has already happened. which can be money fine or imprisonment for stated term
If criminal contempt what kind of constituional protections?
Get reasonable beyond doubt standard
Can there be contempt for non-payment of money judgment?
NO but can if its non payment of alimoney or child support
4 steps in trade secret misappropriation tort to get injunction from theif to stop using it
1) Determine that what P has is a trade secret which is something not generally availan;e to public and gives possessor competitive advantge
2) Determine if it was taken improperly if so easier to get injunction
3) IF thief in FD relationship with owner or employee
4) Determine who theif is, if employee then enjoin him and anyone he gave to
2 steps to enjoin trademark/tradename infringement
1) P must show protectable trademark within scope of location
2) P must show that infringement by showing likelihood of confusion by discussing similarities
Describe the right to imiate problem?
One has a right to freely imimiate another's unpatended product
2 exceptions where one does not have a right to freely iminate a unpatented product?
1) Deception of the public need not be intentional

2) Improper taking
5 requirments for Specific Perfomance (Cha Cha Is My Dance)
1) Contract valid
2) Contract conditions must be satisfied
3) Inadequate legal damages
4) Mutuality of remedy
5) No defenses
How is problem of seller not able to deliver amount of land k promised if seller is Plaintiff
Can stil enforce k if deficinecy is minor, but not if major deficinecy unless can cure before or at closing
How is problem of seller not able to deliver amount of land k promised if BUYER is Plaintiff
Can enforce k even if defect is major but court will abate the price but if defect is VERY MAJOR then cannot enforce the k
What result if time of essence clause and buyer is late on payment?
Equity abhores forfeiture and will still avoid Specific performance to buyer as:
1) loss to seller is small
2) tardiness is de mimimus
3) Waiver of prior course of dealing
4) Buyer would suffer undue hardship
When will time of the essence clauses be strictly enforced
when real estate k not closed yet and still executory
4 things that would made damages too speculative in specific performance
1) damages are speculative
2) defendant is insolvent
3) multiple suits are necessary
4) unique
Is personal propery ever unqiue to be ripe for specific performance?
Generaly NO unless rare, has personal significance, or circumstances make chattel unique (oil cut down and Buyer wants SP of oil k which is now unqiue)
When are liquidated damages clause not valid
When excessive penalty which is not foreseeable of damages
If k has liquidated damages does this make money damages adequate?
No not unless the clause provides this to be the SOLE REMEDY
When is there mutuality of remedy
It exists if both parties and land are in ct's jurisdiction and both parties can enforce at Specific performance
3 equitable defenses to Specific peformaNCE?
1) Unclean hands
2) Laches
3) Unconscionability
How does the defense of unconscionability work
1) measured at time of contracting
2) must be more than a bad deal and parties must not be sophisticated
Explain the statute of frauds part performance exception
WHen sale for real estate and it is oral and not written. Then need 2 of the following:
a: part or whole payment
b: possession
c: valuable improvement
Describe doctrine of equitable conversion
Upon execution of k but before closing risk of loss on buyer and buyer retains real property interest and seller has equitable interest
When seller dies before closing then his beneficiary gets what
Beneficiary of personal property gets the money
If seller dies before closing what does his beneficiary of real property get?
Why are personal contracts never specifically enforceable
enforcement problem and involuntary servitude problem under the 13th amendment
2 requirments for covenant not to compete
1) protect a legitimate interest of services being unique
2) must be reasonable in geographic scope and duration
Describe equitable remedy of Rescission
Cancel and void contract
7 grounds for rescission
1. mistake 2. misrepresentation 3. coercion 4. undue influence 5. failure of consideration 6. lack of capacity 7. ilegality
What is mutual mistake defense
both parties mistaken to material fact to essence of subject matter of k and not collateral matter
What is unilateral mistake
One party has material mistake to essence of contract and innoncent party knew or had reason to know of mistake (HARD TO GET THIS)
What is misrepresentation?
knowingly made false statement and P reasonably relied to his detriment
2 requirments for rescission?
1) grounds
2) determine if any defenses
2 defenses available against rescission?
unclean hands and laches
What is reformation?
This changes written agreement to conform to parties original understanding
3 requirements for reformation (VERY GOOD DOG)
V=alid contract
D=no defenses
What is requirments for unilateral mistake for reformation
Innoncent party MUST HAVE Known
2 VALID defenses for reformation
unclean hands and laches
Not valid defenses for reformation
1) negligence of Plaintiff
2) statute of frauds
3) Parol evidence rule
What is constructive trust?
Imposed on property wrongfully obtained by defendant which defendant now had title to , whereas defendant must return property
If stolen property sold or money used to buy something else can P get this?
YES as long as it is tracebale
When value of stolen property sold for lots of money or value has gone up which remedy sought?
What is equitable lien?
When thief has tite to property then property subject to sale, and then P can sue theif for deficiency and can be levied against the thief's other assets
if thief transfer titles to BFP can P prevail?
If you obtain a deficinecy judgment who has priority between P and unsecured creditor
What remedy is available if property cannot be traced?
Equitable lien only
When can Plaintiff recover item that was stolen or purchased by fraud when that item is in hands of another person?
Only if 3rd person is donee, or purchaser with notice of fraud, if BFP with no notice then cannot get back
What remedy can plaintiff get if stolen property used to improve property?
Equitabe lien on property for value of stolen item
Elements for unjust enrichments:
1. wrongdoes has misappropriated Plaintiff's money or property 2) P's money or property can be traced to property owned by the defendant 3) retention of the property by D would allow him to be unjustly enriched 4) some cts say remedy at law must be inadequate
Elements for Constructive Trust?
D has title to property and would be unjustly enriched to retain so whoever has property becomes a T and must return
Generally is a jury allowed in equity ?>
NO just at law
Exception when jury allowed in equity?
issues of law and equity are intertwined
Defense by Defendant to argue TRO/prelininary injunction?
Hardship greater to D than B after balancing