Ls - Remedies Set Three

Front 1

Defamation Per Quod

Back 1

Must plead or prove actual and pecuniary loss.
o Must plead and prove special damages
 Must show a pecuniary damage; and
 Have to be incurred as a nature and consequence of the defamatory statement
 Have to show that because of the defamation I am suffering loss. (Ie. People think less of me so I have lost commissions

Front 2

Libel & Slander

Back 2

Libel: More permanent things such as printed matter
Slander: Oral communications.

Front 3

Is there injunctive relief for Defamation?

Back 3

• Equity does not enjoin defamation (Old rule 4 reasons)
o Equity will afford protection only to property rights
o An injunction would deprive the defendant of his right to a jury trial on the issue of the publication
o Plaintiff has adequate remedies at law
o An injunction would be unconstitutional as a prior restraint on freedom of expression (most cogent reason)
• Preliminary injunctions can be granted for defamation
o More available in trade libel rather than personal liability

Front 4

Contract remedies

Back 4

Compensation to put Plaintiff in the Position as if contract had been performed

Front 5

How to get lost profits in contract

Back 5

Lost profits must be contemplated at the time of contract.

Front 6

How do you calculate lost assets

Back 6

 Lost assets recoverable at market value
• Market value = How much you could sell the asset on the open market
• Things of sentimental value is not recoverable unless it is a unique item such as a wedding ring

Front 7

What if the breach of contract results from a tort?

Back 7

If the reason for a breach of contract is a tort you can waive the contract and sue in tort

Front 8

Out of pocket rule

Back 8

The detriment actually suffered by Plaintiff rather than the value of what the Defendant promised (Schoenfield).

Front 9

Emotional distress damages in contract

Back 9

Emotional distress damages can only be recoverable where the parties specifically provide for them in the contract or the nature of the contract clearly indicates that such damages were within the contemplation or expectation of the parties.

Front 10

Punitive damages in contract cases

Back 10

Punitive damages are not available for breach of contract unless the cause of the breach is also a tort where punitive are allowed.

Front 11

Contractual provision for liquidated damages

Back 11

 Contractual provision for liquidated damages is okay if the amount bears a reasonable proportion to probable loss and the actual loss would be difficult to determine.
• Struck down as a penalty: if the amount fixed is plainly or disproportionate to probable loss. (often when they specify the same damages regardless of the severity of the breach.

Front 12

Tortious Breach of Contract

Back 12

 Tort damages have been permitted in cases where a breach of duty directly causes physical injury and for breach of the covenant of good faith and fair dealing in insurance contracts.
• Foreseeability alone is not sufficient to create an independent tort

Front 13

When may a tortious breach of contract be found?

Back 13

• The breach is accompanied by a traditional common law tort such as fraud or conversion
• The means used to breach the contract are tortuous, involving deceit or undue coercion or
• One party intentionally breaches the contract intending or knowing that such a breach will cause severe inmitigatable harm in the form of mental anguish

Front 14

Goal of Contract damages

Back 14

Put non-breaching party in the same position as he would have been had full performance been made at the least cost to the defendant and without charging him for non-forseeable harms when he made the contract (Benefit of the bargain)

Front 15

Material Breach of Contract

Back 15

• Affirm the contract and sue for damages
• Rescind the contract and sue for recission restitution
o Return anything confirmed
o Undoing the contract

Front 16

• Recission or damages (sometimes limited to out-of-pocket and or reliance damages)

Back 16

o In negligent misrepresentation you are limited to out-of-pocket expenses and consequential damages
o When someone elects to affirm the contract induced by fraudulent misrepresentation the party may only seek tort damages. (benefit of the bargain)
o Property = The value of what the Plaintiff received – the value of what the Plaintiff would have received if the property was in the represented condition.
o Acts by a purchaser which constitute acquiescence, ratification or estoppels will preclude him from rescinding the contract.
o The right to waive myst be exercised within a reasonable time
 Determined by whether the period has been long enough to result in prejudice.
 Plaintiff may simultaneously pursue all of his remedies against the sellers and other defendants herein regardless of legal consistency, so long as plaintiff is not awarded double recovery.

Front 17

o Benefit of the Bargain (expectation interests) – put in as good a position had the contract been performed.

Back 17

 Difference between contract price and value of what performance was delivered (offset the benefit rule)
 Consequential & Incidental (so long as Hadley not violated)
 Type of contract affects the characterization of the benefit of the bargain

Front 18

Specific Performance when benefit of the bargain inadequate remedy at law (ie. property)

Back 18

• Except where real property is not unique (e.g. condominiums or mass produced homes) and may be dependent upon seller’s or buyer’s perspective

Front 19

Purpose of restitution

Back 19

o Prevent Unjust enrichment

Front 20

Define Unjust Enrichment

Back 20

o Benefit to defendant, at the expense of the plaintiff and unjust to permit the defendant to retain the benefit

Front 21

Measure of damages for restitution

Back 21

o Value of Benefit to Defendant
 Benefit includes
• When there is an addition to the property or another; and
• Where the defendant is saved from expense or loss
 When the Defendant tortfeasor has benefited by his wrong, the Plaintiff may elect to “waive the tort” and bring an action for restitution
 Where there is conscious wrongdoing, the defendant is disgorge of his profits from the wrongdoing

Front 22

Quantum Merit

Back 22

 Measured by the reasonable value of materials or services rendered.
 Applies in express contracts and contracts implied in fact

Front 23

Equitable Restitution vs. Legal Restitution

Back 23

o Equitable restitution is where specific money or property belonging to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession
o Legal restitution is where you are imposing liability on Defendant for a sum of money
 Done when you can’t assert title to specific property

Front 24

Constructive Trust

Back 24

o To get one there needs to be
 A fiduciary or confidential relationship (maybe)
 Express or implied promise
 A transfer made in reliance on that promise
 Unjust enrichment
o Can use tracing to determine what property needs to be in the constructive trust
 If there are any profits (ie embezzling funds in stock) we can take the stock and profits from stock in constructive trust because we don’t want the Defendant benefiting from his wrong.

Front 25

What you need to show for a constructive trust

Back 25

 You have to show fraud or mistake to get the money
 I have to be able to trace my money to the property to get it in a constructive trust

Front 26

o Lowest Intermediate Balance Rule

Back 26

 Applied from the date where the fraud began
 Take the lowest value of the account and divide it up

Front 27

- Equitable Liens

Back 27

o When you only pay a portion for the property, you only get an equitable lien, not the whole property
o Where someone has taken money to improve property think of equitable lien (Constructive trust for acquired property)

Front 28

- Subrogation

Back 28

o The plaintiff is permitted to stand in the shoes of the party holding the right and enforce the claim which that party had
o Can be a contractual right

Front 29

- Defenses to Unjust Enrichment claims

Back 29

o Volunteer or officious intermeddler
 Equity will not aid a volunteer.
 One who officiously confers a benefit upon another is not entitled to restitution.
 Exceptions
• Restitutionary relief may be available for services rendered voluntarily under emergency conditions to protect the well-being of the person or property of another; but
• The courts deny recovery from the benefitted party in the absence of a subsequent promise to compensate the injured Plaintiff.

Front 30

 Services rendered without an expectation of compensation

Back 30

• When a defendant knows or should have known that you are expecting compensation for services or beneficial information provided you are not considered a volunteer and quantum merit relief may be awarded.

Front 31

 Things to look for when considering whether someone is a volunteer

Back 31

• The severity of the tasks performed
• The relationship of the parties
• When she stopped performing the services
• Purpose of performance
• Whether there is any evidence that Plaintiff would have discontinued services had she known there would be no payment.
• Where services are admittedly rendered or benefits conferred voluntarily, without intention of receiving compensation on the part of the one rendering the services, and the person for whom they were rendered accepted them in reliance upon such intention, no actual contract to pay is implied in fact

Front 32

Spouses

Back 32

 Generally spouses have no expectation of payment for services rendered to spouse during marriage.
• Exception – Expressed intention that services are to be paid

Front 33

o Preclusion by existence of an express contract

Back 33

 The general rule is that no quasi-contractual claim can arise when a contract exists between the parties concerning the same subject matter on which the quasi-contractual claim rests.
 Exceptions
• Evidence of fraud or bad faith
• Breach of contract
• Mutual rescission of the contract, when rescission is warranted
• When the express contract does not fully address a subject matter

Front 34

o Change of Position

Back 34

 It is a general rule of restitution that if one party pays money to another under a mistake of fact where an obligation required such payment, the payor is entitled to restitution. However, payees will not be required to return overpayment where they have changed their position such that demanding a refund would be unfair.
• To constitute such a change, the burden is on the payee to establish that the change has been detrimental to the payee and that it was material and irrevocable such that the payee cannot be returned to the status quo.
• A mere change of form of the proceeds does not qualify when the payee has retained the value.

Front 35

 Third party creditor exception

Back 35

• Arises to the fact that there’s been no unjust enrichment of the innocent third party.
o The innocent third party creditor is not unjustly enriched because the third party was owed the money.

Front 36

o Fruit of Defendant’s Labor

Back 36

 When the profits obtained from property are also attributable to Defendant’s labors then an apportionment should be made between the two to limit the Plaintiff to the profits fairly attributable to his share

Front 37

 Burden of proof

Back 37

• The Plaintiff has the burden to show gross revenues
• The Defendant has the burden to show their ordinary costs and expenses

Front 38

 Factors effecting the allocation of burden and degree of specificity

Back 38

• The seriousness of the Defendant’s wrongdoing
• The extent to which the Plaintiff’s contribution was at risk in the profit-making enterprise.

Front 39

o Cases

Back 39

 Hermann – Equity and Fairness required appellants to pay interest because they held the rental money for 20 months and had the benefit of the use of the money to the detriment of the rentor. Thus determined interest should be paid.
 Statute of frauds is not a bar to recovery in quantum meruit cases

Front 40

- Relationship with Punitive damages

Back 40

o They are not dependent on one another. You can get both as long as there is a need for punishment or a higher level of deterrence.