Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

89 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
What is the high level framework for answering equity questions?
1) Is there a remedy at law and if there is, is it adequate? (if adequate remedy at law -- forget equity)
2) Are there any historical self-restraints or countervailing policies that keep you from getting to equitable relief practicably?
3) Are there any equitable defenses, such as laches or unclean hands that keep you from getting to equitable relief?

1) Adequate remedy at law?
2) Equity practicable?
3) Equitable defenses?
3 steps and 3 step summary
Can a plaintiff choose between an equitable and legal remedy?
NO! If a remedy at law is adequate, equity is not available.
What factors make legal remedies inadequate?
1) where the subject matter is unique or rare
2) where damages are speculative and uncertain (hard to put a reasonable $$ figure on it)
3) Where D is insolvent
4) Where multiple lawsuits would be required
5) where irreparable harm would occur
1) SM rare
2) Damages speculative/uncertain
3) insolvency
4) would require multiple lawsuits
5)irreparable harm
5 factors
Equity only acts where equitable relief is _______.
Based on impracticability, equity will generally refuse to . . . ?
1) order performance requiring protracted supervision
2) interfere with free speech
3) compel personal services
4) interfere with the administration of criminal law (precluding injunctions against threated crimes/prosecutions unless compelling reason to interfere)
Do these 4 things
What is the first step in answering an equitable remedies question?
1) Are the two general requirements satisfied?
a) legal remedy is inadequate
b) equitable relief is feasible
two requirements
What is the second step in answering an equitable remedies question?
2) Are there any specific reqs for the particiular remedy you seek?
a) injunction
b) specific performance
c) recission and reformation
What is the third and final step in an equity question?
3) Are there any equitable defenses?
a) unclean hands
b) laches (time bar)
c) unconscionability
d) impossibility or hardship
e) fraud
f) estoppel
g) freedom of speech
7 defenses
For equity to be feasible, what must first be established?
Jurisdiction over:
1) the person who would be ordered to act, OR
2) the property at issue in the suit
Jurisdiction over . . .
What factors might make injunctive relief infeasible?
1) act is complex
2) act involves unusual skills (accounting, medical, etc.)
3)compliance involves matters of judgment or taste, OR
4) relief requires extensive supervision
4 factors
What part of the constitution provides for the right to equitable relief?
NONE! There is no constitutional right to equitable relief--it's always discretionary.
Does a jury trial right exist for actions in both law and equity?
No. Equitable actions have no right to a jury trial.
Is there a right to a jury trial in "mixed" cases of law and equity?
Yes but only for the counts asserting legal claims upon making a timely demand.
Is there a statutory right to a jury trial in hearings in equity?
Yes but very narrow. Only in:
1) statutory quiet title actions, AND
2) where the D files a plea in equity
What is a plea in equity? Who can make it?
It is a defensive pleading that sets forth a single dispositive set of facts, which, if prove, would give D a complete exoneration on P's claim.
What are 8 examples of pleas in equity?
1) illegality
2) time bar
3) accord and satisfaction
4) res judicata
5) release
6) infancy
7) bankruptcy
8) bona fide purchaser status
8 examples
Pleas in equity are only available to ______.
What is an advisory jury?
It is the other means of receiving a jury trial in equity.
Where are advisory juries used and who seats them?
A judge has the discretion to seat an advisory jury to assist in deciding hotly disputed factual issues.
May judges rely on advisory juries' decisions?
NO. They are merely advisory and he may not rely on them. He may only have them "inform the conscience of the court."
How many days does the court have to suspend a decree in equity?
Within 21 days after the entry of the decree. "Suspending" the decree can only be done while it is in the breast of the court and only refers to the first period of time.
On what grounds may a trial court suspend an equitable decree?
1) Newly discovered evidence, OR
2) ANY error of law or fact, whether or not the error appears on the record
After the decision leaves the breast of the court, may a trial court still modify the decree?
Yes. If a bill of review is filed within 6 months of the entry of decision (decree).
On what basis may the court enter a bill of review?
1) Newly discovered evidence, OR
2) An error of law when it APPEARS ON THE FACE of the record
2 ways
What is the Virginia standard for getting a new trial on "after discovered evidence"?
It is very difficult.
A party seeking a new trial bears the burden to show that the evidence:
1) was discovered subsequent to trial,
2) could not have been discovered by reasonable diligence for use at trial,
3) is not merely cumulative, corroborative, or collateral, AND
4) is material and would probably produce a different result on the merits of another trial
Moving party bears the burden of showing these 4 things
Equity decrees (may/may not) be appealed.
May be appealed.
Is appeal from equity decrees a matter of right or discretionary?
It depends.
(a) In domestic relations cases, matter of right, and appealed to Court of Appeals.
(b) In all other subject matters, appeal is discretionary. The appellant must petition the Supreme Court to grant leave to appeal.
two diff't scenarios
A agreed to sell B a year-old red Ford. A refuses to deliver even though B is ready to pay. Is equity available?
No. The remedy at law is adequate.
A agreed to sell B Elvis's Pink Cadillac. A refuses to deliver even though B is ready to pay. Is equity available?
Probably because the subject matter is unique and damages would be speculative.
C agreed to sell D 5 acres of land. C refuses to convey even though D is ready to pay the agreed price. There are serveral nearly identical 5-acre tracts nearby. D asks the equity court to order C to convey. What result? Why?
Equitable relief is available. VA considers land unique--even where land is identical.
Every weekend E drives across F's farm to get to a lake cottage. F asks the equity court to order E to stop. What result? Why?
Equity is available because damages would be inadequate--would only be nominal damages.
As part of a suit under a land sales contract, G asks the court to require H to convey some real estate located in another stay where H is and resides. What result? Why?
Equity is not available because the court does not have jurisdiction. H is not present (cannot hold him in contempt) and can't change title.
L hired M, a very prominent architect, to design a new office bldg. M now refuses to do so. L wants the equity court to order M to perform. What result? Why?
Equity unavailable bc it will not enforce personal services contracts.
What types of injunctions may be issued?
1) prohibitory, AND
2) mandatory
What is a prohibitory injunction?
It is designed to protect a threatened wrong/injury that has not yet occurred.
What is a mandatory injunction?
It orders correction/redress of an already inflicted injury.
What are the steps to obtain an injunction?
1) Satisfy all general reqs for equitable relief, AND
2) There must be no equitable defenses available, AND
3) determine if the particular tort is one for which injunctive relief is available
Start an answer to an equity question by stating that "Equity is never mandatory nor available as of right. Nor is equity ever evaluated by an applicant's showing, but rather, "equity will _____ the _____."
Balance the hardships.
When are injunctions normally available?
1) continuous or repeated trespass
2) conversion of a unique chattel
3) to stop unfair competition
3 situations
Where are injunctions sometimes available?
1) to eliminate a nuissance*
2) to prevent waste

*depends on the type of nuissance
What type of nuisance will equity sometimes be available to eliminate?
PRIVATE nuisance ONLY. (individualized harm--e.g., something you can physically point to like smoke next door)
NOT PUBLIC nuisance (e.g., crack house down the street)
Injunctions are usually NOT AVAILABLE in the following types of cases.
1) defamation,
2) commercial defamation (aka trade libel)
3) invasion of privacy, unless it involves unauthorized use of a person's name or picture
4) pending criminal proceedings
4 types with a distinction
Is a temporary restraining order (TRO) available in Virginia?
Yes, but it is not called a TRO. It's "temporary injunctive relief."
Generally, when is temporary injunctive relief available?
When necessary to preserve the status quo
Specifically, what must a movant establish to obtain temporary injunctive relief?
1) irreparable harm unless the status quo is maintained
2) reasonable probability of prevailing on the merits, AND
3) public interest will not be adversely affected (health, safety, food, medical care)
How is a temporary or preliminary injunction obtained?
GR: granted after hearing both sides
EX: ex parte temp inj rel will be granted but is only effective for a short period of time

Must both sides be heard?
What are the specific requirements for obtaining the remedy of specific performance?
a plaintiff must show:
1) a valid contract exists,
2) all contract conditions have been met, AND
3) mutuality of remedy exists
3 things
What is necessary for a valid contract?
1) certainty of terms--it must include a) description of subject matter, b) price, c) time and manner of payment, d) quantity or performance
2) Existence of SOME consideration--so long as there's some benefit and detriment = adequate consideration
What are the 2 most frequently tested conditions related to all contract conditions having been fulfilled?
1) a "time is of the essence" provision
2) marketable title
When can failure to comply with a "time is of the essence" provision be ignored by the equity court?
1) tardiness is de minimus
2) loss to the complying party is slight
3) undue hardship to the forfeiting party, OR
4) if it's waived by the party who wishes to enforce it
4 situtations that will allow court to ignore non-compliance
If a seller cannot convey marketable title, equity will not normally grant specific performance, unless one of the following two:
1) deficiency in title is minor, OR
2) buyer waives the deficiency

-in the above situations, specific performance will be available with a reduction in the reasonable price
What is mutuality of remedy? Does it exist in VA?
Mutuality of remedy exists in VA and states that where one party to a contract is not entitled to specific performance, neither may receive it.
When are remedies mutual?
1) both parties are able to perform, AND
2) both parties can be bound
F agreed to sell G 100 acres of land. F has marketable title to 93 acres, but title to the remaining acres is in doubt. Can F, the seller, obtain specific performance? Why/why not?
Yes. By suing, G waives any defect and the court has the power to reduce purchase price.
J agreed to sell 2 acres to K (who is 17). J refuses to convey. Can K obtain specific performance?
No. There is no mutuality of remedies because if the situation were reduced, K couldn't be sued due to his infancy.
J agreed to sell 2 acres to K (who is 17). J refuses to convey. Can K obtain specific performance if he waits until he turns 18?
Yes. Mutuality would exist because he would then be subject to suit.
Under the "tort aspect" of unfair trade, to be a "trade secret," what 3 characteristics must the information have?
1) otherwise unavailable,
2) gives owner a competitive advantage, AND
3) it has been kept confidential
Is equitable relief generally available from unlawful competition? Why/why not?
GR: ER available because lost profits from unlawful competition would be too speculative
If there is a covenant not to compete, when will equity grant specific performance?
If the restrictions are reasonable as to:
1) employer's legitimate interests,
2) the employer's right to a livelihood, AND
3) sound public policy
3 characteristics
What are the three key aspects in determining the reasonableness of a non-compete agreement?
1) nature of the activities prohibited,
2) geographical area, AND
3) duration of any restriction (GR: 1-2 yrs okay, 5 yrs not okay)
Will Virginia courts save overbroad non-compete agreements by reducing the terms to reasonable ones?
Courts in VA will not "bluepencil" (modify) agreements. It will stand or fall on its own.
What is the main difference between rescission and reformation?
-rescission voids a contract as though it had never happened--it cancels the contract
-reformation treats the contract as valid and changes a writing
Under what circumstances will equity rescind a contract?
If at the time it was entered into there was:
1) mutual mistake as to a material fact, OR
2) unilateral mistake coupled with: (a) any form of misrepresentation (even innocent), OR (b) some other form of inequitable conduct

Note: duress, undue influence, etc. will also rescind a contract
Under what circumstance will equity reform a contract?
1) any mutual mistake, OR
2) unilateral mistake coupled with knowing misrepresentation (fraud)
What must a plaintiff show to obtain the equitable remedy of restitution?
P must show BOTH that:
1) D obtained a benefit from P, AND
2) P expected recompense AND D should have known that
Is restitution an available remedy against the Commonwealth?
No. Although liable at law, it is immune from equitable COAs.
Is restitution available against counties, cities, or towns?
What equitable remedies are available under the theory of restitution?
1) dollar awards
2) constructive trusts
3) equitable liens
4) specific restitution
4 remedies
When can a constructive trust be imposed?
If property a D wrongfully obtained can be traced to some asset D still has, the court may impose a constructive trust.
What is a constructive trust?
Where the court in effect declares the P the beneficial owner of D's asset and D must disgorge it specifically.
What is an equitable lien?
A judge-made mortgage in favor of a victim on porperty that a culprit has either acquired or improved at the victim's expense.
What is an equitable accounting?
A study of the finances of a person/organization to determine the amount of any award appropriate under the facts of a case.
What is a receiver?
A person appointed by the court to manage a business or keep property pending ultimate disposition.
What is partition of real property?
When one co-owner of land sues another co-owner, the court can partition the land/minerals/etc.
What type of partition is preferred in partition of real property?
Partition in kind is the preferred outcome if it can be conveniently achieved.
-splitting it up into equal parts
What is subrogation?
Where a person is required to pay the loss/obligation of another or discharge a lien on property of another, such person may succeed to and be subrogated to the rights of the victim of the loss against the person who caused it.
Summary: where a person pays the obligations of another, that person has the rights to stand in the shoes of the original creditor
What is an example of subrogation?
-A negligently runs into B's car. B's collission insurer pays the loss to B and is, to this exten, subrogated to B's tort claim against A.
-A steals 10k from B and pays off a mortgage on A's house. B may be subrogated to the bank's former mortgage on A's house, thus securing priority over A's other creditors.
What is contribution?
In Va, one joint tortfeasor or joint obligor who pays off all of a claim may seek contribution from the others PRO RATA--NOT BY PROPORTIONAL FAULT (e.g., 2 tortfeasors = 50/50, 3 = 33-33-33)
When is contribution not available?
In torts involving moral turpitude. (int'l torts)
What is equitable indemnification?
Like equitable contribution but a bit different. Where two or more are jointly liable on a debt/oblig/tort but A is primarily liable and B pays it, B can seek payment IN FULL NOT pro rata from A. (e.g., an innocent employer liable under respondeat superior can proceed against the e'ee who committed the tort)
What happens to voluntary transfers and fraudulent conveyances in creditors' suits?
-Voluntary transfers will be voided if c'or can prove:
(i) inaquate consideration,
(ii) c'or became c'or before (iii) the transfer, and d'or was either insolvent at the time of transfer or as a result of the transfer
-Fraudulent conveyances will be set aside if applicant can show:
(i) transferor intended to defraud c'or, AND
(ii) transfer made with the effect of hindering/defrauding the c'or

NOTE: if fraudulent knowledge or intent is shown, a c'or need not show insolvency
Who can equitable defenses be raised against?
All classes of litigants except GOVERNMENTAL BODIES
What is the doctrine of unclean hands?
An equitable defense assertable when P is guilty of improper conduct related to the transaction. Conduct need not be illegal--sophisticated taking advantage of unsophisticated is sufficient.
What is the doctrine of laches?
An equitable defense based on delay in bringing suit.
How does laches differ from a statute of limitations?
It is a flexible time bar whereas the statute of limitations is rigid.
When is the defense of laches available?
1) Adult P waits an unreasonable time to bring suit, AND
2) Delay was prejudicial (lost evidence)
What is an unreasonable amount of time in a case where a laches defense is asserted?
It's case-by-case but it runs from the date injury is DISCOVERED not incurred.
Can laches extend a statute of limitations period?
NO! It can only shorten it if there is one.
What is fraud and what must be alleged to successfully assert the defense?
Fraud is an equitable defense to specific performance on a contract. To make out a fraud defense, one must generally allege:
-knowing misrepresentation
-seeking reliance of another

Note: misrepresentation of intention or future events is not fraudulent