Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
30 Cards in this Set
- Front
- Back
Three Steps to Approach Equity Problem
|
- are the general requirements for equitable relief satisfied
- are any specific requirements for the particular equitable remedy satisfied - are there any defenses |
|
Two reasons to seek equity
|
- legal remedy is inadequate
- equitable relief is feasible |
|
Three most common remedies
|
- injunction
- specific performance - recission and reformation |
|
Defenses (4)
|
- unclean hands
- laches - impossibility or undue hardship - freedom of speech |
|
Requirements where legal remedy may not be adequate (5)
|
- subject matter of litigation is unique or rare
- damages are speculative or uncertain - multiple lawsuits required - where insolvency of D makes judgment at law uncollectable - where irreparable harm results from D's conduct (not fully compensatable by $$$) |
|
When court will deny mandatory relief (4)
|
- application of taste
- skill complex, extensive supervision - act is beyond D's ability - personal service contracts |
|
Is EQUITABLE RELIEF ALWAYS DISCRETIONARY?
|
YES
|
|
Two musts to obtain injunctive relief
|
- equitable remedy feasible
- no defense |
|
Torts where injunctions are normally available (3)
|
- continuous trespass to land
- conversion of unique chattel - prevent continuation of a wrongfully instituted suit |
|
Injunctions are SOMETIMES available (7)
|
- eliminate nuisance
- prevent waste - prevent fraudulently obtained judgment - inducing breach of contract or refusal to deal - use of competitor's trade secret - trademark infringement - copyright infringement |
|
Injunctions generally NOT available (3)
|
- defamation
- trade libel - publication of pvt facts (not in NC) |
|
Two types of temp injunctive relief
|
- interloquitory inj
- TRO |
|
Two steps to obtain temp injunctive relief
|
- necessary to preserve status quo pending trial in order to prevent irreparable harm AND
- P must show liklihood at prevailing at trial |
|
Injunction Bond (NC)
|
limits damages which may be recovered
|
|
Does civil contempt fail under the underlying injunction fails?
|
YES
|
|
Civil Contempt (2)
|
- compensate P for damages caused by D's disobedience of ct order
- coercive (compel D's compliance with ct order) |
|
Criminal Contempt (2)
|
- direct - occurs in front of judge
- indirect - outside ct (testimony) |
|
To obtain specific performance you must show (3)
|
- valid contract
- all contractual conditions fulfilled - mutuality of remedy exists |
|
Contract Terms (4)
|
- identity of parties
- price - time and manner of payment - description of subject matter including material terms |
|
Time is of the Essence Clause is ignored (4)
|
- tardiness is di minimus
- loss to other party is slight - undue hardship to forfeiting party OR - equity goes out of its way to find a waiver |
|
Seller of land must convey marketable title - equity will not grant specific performance UNLESS (2)
|
- deficiencies are minor and performance may be granted with a reasonable reduction in price
- buyer waives |
|
Equitable Conversion
|
BUYER has risk of loss if bldg is damaged before closing (not NC)
|
|
Uniform Vendor Purchaser Risk Act (NC)
|
seller has the risk of loss until possession is delivered
|
|
Definition of Recission
|
Recission is a remedy by which a voidable contract is put to an end and the parties are treated as thought it had never been made
|
|
Definition of Reformation
|
Reformation treats the contract as valid and changes a writing setting forth or implementing the agreement to conform with the originally intended agreement
|
|
Does mutual mistake of material fact qualify for recission?
|
yes
|
|
What might lead to reformation (3)
|
- scriveners error
- unilateral mistake coupled with fraud - misrepresentation (innocent or fraudulent) |
|
Constructive Trust
|
A constructive trust imposes an equitable duty on a D to convey property acquired under certain circumstances to the rightful owner.
|
|
Equitable Lien
|
An equitable lien operates as a charge or encumbrance on property and is available where the P can trace misappropriated funds or other property to its product
|
|
A person holding an equitable interest in property, such as through a constructive trust or equitable lien, cannot enforce that interest against...
|
BFP
|