Rb - Remedies

Front 1

Replevin

Back 1

Replevin is a legal restitutionary remedy that allows the recovery of specific PERSONAL property wrongfully taken.

Requires a right to possession and a wrongful withholding.

Front 2

Quasi-Contract

Back 2

A legal restitutionary remedy that is substantial in nature.

PL is awarded a sum of money measured by the reas value of the DF's ill-gotten gain.

This obligation is imposed by law to avoid unjust enrichment.

Limited to the reas value of what was supplied (repair value) or the change in value.

Front 3

Constructive Trust

Back 3

An Equitable Restitutionary Remedy that is supplied in law and imposed by equity courts when the retention of ppy by the DF-wrongdoer would result in unjust enrichment.
The court will treat the ppy as if it were held by the DF in trust for the PL.

Front 4

Tracing

Back 4

PL can follow the ppy to whatever form it takes, so long as the trust res can be identified.

Lowest intermediate balance where the funds are commingled in an account, can obtain an equitable lien.

Front 5

Equitable Lien

Back 5

An equitable charge on ppy imposed by law to prevent unjust enrichment.

To impose an EL on DF's ppy to secure a debt, must show:
1) wrongdoer misappropriated PL's ppy under circs creating a debt or obligation to pay,
2) PL's ppy can be traced to ppy held by DF, and
3) the retention of ppy by DF would result in unjust enrichment.

Front 6

BFPv w/o NAIR & Equitable Rights

Back 6

Equitable rights are cut off by transfer of legal title to a BFP.
BFP is one who pays value and takes title without notice of the wrongdoing.

(ie, NO REPLEVIN, CT, or EL available to PL where a BFPv cuts off those rights)

Front 7

K, Specific Performance remedy Checklist

Back 7

Contract Valid
Conditions of PL Satisfied
Inadequate Legal Remedy
Mutuality of Remedy
Feasibility
Defenses (equitable/contract)

Front 8

Unclean Hands

Back 8

A DF who is guilty of misconduct concerning (related to) the transaction will be barred from obtaining specific performance.

Front 9

Excused duty to Perform

Back 9

A person cannot be compelled to perform if his agreement was obtained by misrepresentation, concealment, or unfair practices.

Front 10

When seller breaches a land sale K, 2 rules for measuring damages.

Back 10

Out-of-Pocket Loss (Common Law): Limits buyer to recover out-of-pocket expenses such as down pmt, cost of title searches, and escrow expenses.

Benefit-of-Bargain: Difference b/t the FMV and K price.

Any damages must be foreseeable, unavoidable (mitigate), caused by breach, certain and definite.

Front 11

Rescission

Back 11

If the seller or buyer is guilty of fraudulently inducing the K, the other may rescind the K.

Also--> mutual mistake of a material fact, or unilateral mistake where the non-mistaken party knows OR SHOULD KNOW of the mistake, or
Misrepresentation.

Front 12

Reformation

Back 12

An equitable remedy by which the court modifies or alters a contract made to conform to parties' previous understanding or agreement.

An innocent or fraudulent misrep is grounds for reformation.

Front 13

K's to Buy & Sell Real ppy
(Seller Breaches)

Back 13

Where B sues for breach of a land sale K, the buyer's damages are measured by Out-of-Pocket loss under the Common Law or Benefit-of-the-bargain under Modern Rules.

Front 14

Standard Remedies in Tort v. K

Back 14

In tort cases, the standard remedy is money damages.

In K cases, the standard remedy is expectation damages.

Front 15

Mechanic's Lien
effect of Sale to BFPv

Back 15

gives a mechanic equitable title to the ppy for the value of his repairs.

A sale to a BFPv cuts off the right to someone who does not have legal title (ie, a mechanic, who only has equitable title).

Front 16

Quasi K Value

Back 16

Reasonable value of the DF's ill-gotten gain.

PL's recovery is limited to the reas value of services and parts supplied (which may be MORE than K PRICE)
Could be COST OF REPAIR or DIFFERENCE IN PRICE before and after repairs.

Front 17

Constructive Trust

Back 17

An Equitable Restitutionary Remedy.
Implied in law and imposed by equity courts when the retention of ppy by the wrongdoer-DF would result in unjust enrichment.
The Court will treat the ppy as if it were held in trust for the PL by DF.
-Inadeq Legal Remedy (insolvency of DF)
- Tracing Allowed
- BFPv cuts off rights of person w/out LEGAL title.

Front 18

Tracing

Back 18

Under the doctrine of tracing, the PL can follow the ppy to whatever form it takes, as long as the trust res can be identified.

Front 19

Tracing to a Commingled Account

Back 19

Where withdrawals from a commingled account cause the balance to sink below the amount of the injured party's claim, the victim may obtain an equitable lien only to the extent of the lowest intermediate balance of the account.

Front 20

Replenishment Theory

Back 20

Some Courts permit the Victim to recover where funds were put back into the account w/ the intention they be substituted as restitution.

Front 21

Equitable Lien

Back 21

An EL is an equitable charge on ppy imposed by law to prevent unjust enrichment.

To impose an EL on DF's ppy to secure a debt, it must be shown that 1) the wrongdoer misappropriated the PL's ppy under the circs creating a debt or obligation to pay,
2) the ppy can be TRACED to ppy held by the DF, and
3) the retention of the ppy by DF would result in unjust enrichment.

Front 22

Injunctive Relief Not Available

Back 22

Injunctive relief in tort and specific performance in K is not available when no tort was committed and no contract existed b/w PL and DF.

Front 23

BFPv Cuts of Equitable Rights

Back 23

Equitable Rights are cut off by transfer of legal title to a BFPv.

BFPv is one who takes value and takes without notice of wrongdoing.

Replevin, CT, and EL NOT AVAILABLE.

Front 24

Breach of K, Anticipatory Repudiation

Back 24

Words or conduct of the promisor which unequivocally indicate she cannot or will not perform entitles the non-breaching party to:
1) treat the AR as BREACH and sue,
2) SUSPEND performance and WAIT and sue on the date set for performance,
3) treat the repudiation as RESCISSION, or
4) IGNORE the reputation and urge the promisor to perform.

Front 25

Specific Performance (equitable remedy)
Valid Contract PLUS
C-C-I (M F D)

Back 25

Specific performance is a mandatory decree that orders a contracting party to perform. In order to apply, there must be a K b/w the parties.

PLUS the K must be definite and certain so the court can easily see what each party needs to perform (terms: PER). Requires more definiteness and certainty than K formation.

Front 26

Specific Performance: Feasibility
F

Back 26

Enforcement of the K must be feasible by the court, who must be able to supervise the K terms.

Front 27

Specific Performance: Mutuality of Performance
M

Back 27

There must be mutuality of performance or remedy where the court feels confident the party is ready and able to perform.

Front 28

Specific Performance: Defenses
D

Back 28

Equitable:
Unclean Hands, Laches, Unconsc,
Contract:
Mistake, Misrep, SOF

Front 29

Abatement of Purchase price

Back 29

List things that will reduce the purchase price in the essay for the equitable remedy.

Front 30

Unclean Hands

Back 30

Unclean Hands defense is available only if PLs alleged improper conduct is RELATED TO the lawsuit.

Unrelated unfair conduct is irrelevant.

"A PL who is guilty of misconduct will be barred from obtaining specific performance."

Front 31

Misrepresentation
(Specific Performance Defense)

Back 31

Specific Performance will be denied when misrepresentation or concealment is used to obtain a party's assent to the K.

The party must affirmatively misrepresent.

Front 32

Equitable Conversion XXX BFPv
(BFPv cuts off equitable rights - not legal)

Back 32

A land sale by the seller to a BFPv w/o NAIR cuts off the buyer's rights to an equitable conversion.

When a land sale K becomes specifically enforceable, there exists an equitable conversion upon the execution of the K.
The ppy interest of the buyer and seller switch upon execution.

Buyer is considered the "equitable owner" until title is conveyed. buyer has a real ppy intereest and seller has the personal ppy ($) interest.

Front 33

Legal Remedies:
Ks to buy and sell PPy, Damages for Seller's breach

Back 33

Where buyer sues for breach of land sale K, the buyer's damages are measured by OoP loss under common law, or BoB under modern rules.

OoP=down pmt, cost of title search, and escrow expenses (costs actually expended in furtherance of the K)

BoB=diff b/w the mkt price and the K price.
Definite, Foreseeable, Unavoidable, and Caused by breach.

Front 34

Restitutionary Remedy:
Rescission PLUS

Back 34

Rescission is a restitutionary remedy whereby seller who is fraudulently induced into entering a K may rescind the K.

PLUS after rescission, the party may recover restitution of any benefits the other party received.

Front 35

Equitable Remedy:
Reformation

Back 35

Reformation is an equitable remedy by which a court modifies or alters a K to make it conform to the parties' previous understanding or agreement.

Unlike rescission, there must be an original K free from any defect that makes the K voidable.

An innocent or fraudulent misrep is grounds for reformation.
(ex: misrepresenting the total # of acres on the land, or that the land has water rights when it doesn't--Ct may reform K to show what is actually being conveyed...and Abate purchase price)

Front 36

Undisclosed Principal Situations

Back 36

An undisclosed principal, one whose existence and identity are unknown to a 3rd party, may enforce a K against a 3rd pty unless the agent fraudulently concealed the principal's identity.

There must be an affirmative misrepresentation for this to apply.

Front 37

Specific Performance:
Mutuality of Remedy/Performance

Back 37

Most Courts hold that where the DF could obtain performance against PL, the mutuality of agreement is satisfied.

Front 38

Fraud in Inducement

Back 38

Contracts induced by fraud are voidable.

Front 39

SOF Defense:
Partial Payment or Delivery

Back 39

When pmt has been made and accepted, the K is enforceable to the extent of the pmt received and accepted.

Front 40

SOF Defense:
Promissory Estoppel

Back 40

Promissory estoppel may apply in cases where it would be unfair for the SOF to bar a claim where the DF's conduct induces a PL to change his position in reliance on an oral agreement.

The promisor must reas expect to induce the promisee to detrimentally relay on her promise.

Front 41

K Remedies
Construction Ks

Back 41

Compensatory Damages: If builder has substantially performed, the building owner may recover damages measured by: 1) the cost of repair or replacement, OR 2) the diff in value of bldg as built and its value if it had been constructed under K specs.
Restitutionary: Not available
Specific Perf: When remedy at law is inadequate.

Front 42

PIR
Likelihood of success on merits
Balance Hardships
Injunctive relief necessary to maintain status quo pending trial

Back 42

A preliminary injunction is issued only after notice and an adversary hearing.

The granting or refusing of the prelim injx is not based on a final determination of the merits of a case, but is a provisional remedy designed to maintain the status quo pending trial.
Look at the Likelihood of success on the merits, and balance hardships.

Front 43

Maintain the Status Quo

Back 43

Look at how it would be detrimental to PL if PIR not granted. Look at detriment to DF if it were.

Front 44

Resulting Trusts
in Real PPy

Back 44

A resulting trust is used where one party has obtained legal title of property through unjust enrichment. Beneficiary must supply KSN @ or before time trustee takes title.

Front 45

Purchase Money Resulting Trust
in Real Ppy

Back 45

PMRT involves the sale of ppy where one pty obtains legal title, but KSN was supplied by another party.

Front 46

What happens when wrt a PMRT?

Back 46

The courts will imply that the party holding the title is the trustee, and the party furnishing the title is the beneficiary. (BTIPP)
Once beneficiary proves by C&CE that she provided KSN, a RESULTING TRUST IS PRESUMED, unless unlawful purpose or trustee and beneficiary are closely related (gift presumed).