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232 Cards in this Set
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General categories of tort remedies
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damages
restitution injunctive relief in tort |
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Damage remedies in tort include
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compensatory damages
nominal damages punitive damages interest & attorney fees |
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Compensatory damages are
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money to compensate P for loss or injury.
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Compensatory damages include
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1. gen damages wh compensate foreseeable losses
2. special damages not necessarily foreseeable & must be specifically pleaded. |
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To be recoverable, damages must be
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causal
foreseeable certain unavoidable |
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How is foreseeability tested?
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proximate cause.
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The avoidable consequences doctrine
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limits damages to those wh could not reasonably have been avoided.
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Nominal damages
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trifling sum awared when a legal injury is suffered but when there is no substantial loss or injury to be compensated. Note that actual injury is a required element of certain claims (e.g. fraud) so nominal damages cannot be recovered in such cases.
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Punitive damages
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are awarded to punish D for "willful, wanton or malicious conduct."
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Generally, punitive damages are limited to
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intentional torts--or to reckless misconduct.
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Re: amt of $ in punitive damages, some courts require
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reasonable re/ship b/n punitive & compensatory awards.
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Grossly excessive punitive damages
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are invalid under the Due Process Clasue of the 5th & 14th As.
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In assessing whether punitive damage awardes violate due process, the key issue is
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whether D had FAIR NOTICE OF THE MAGNITUDE of the punitive damages
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Criteria wh can be used to evaluate whether D had fair notice of the magnitude of the punitive damages include
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1. reprehensibility of D's conduct
2. disparity b/n the actual or potential harm suffered by P & the punitive award 3. diff b/n the punitive damages award & crim or civil penalties authorized for the conduct. |
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Rule of thumb for punitive damage awards is that they should not exceed
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10X compensatory damages
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Injury to nonparies may be used as evid of reprehensibility but it may NOT be used to
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determine amt of punitive damages to be awarded to P b/e doing so would violate due process.
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Awarded of prejudgment interest is generally
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statutory
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Attorney fees generally are
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not recoverable absent an applicable statute or K (except for prevailing P in SHs derivative suit)
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Restitutionary remedies may be either
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legal or equitable
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Restitutionary remedies provide an alternative to compensatory damages when
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D has obtained a benefit, retention of wh amounts to unjust enrichment.
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The objective of restitutionary remedies:
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restore D's unjust gain to P.
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Restitutionary damages are
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remedy imposed by law that obligates D to pay P reasonable value of benefit unjustly obtained. Benefit can be conferred as a result of mistake, duress, tort or breach of K. In tort sits, available when tort results in a benefit to D.
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Replevin (claim & delivery):
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legal remedy that permits P to recover, before trial, possession of specific chattel wrongfully taken or detained.
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Replevin provides a remedy for P to recover goods prior to determination of a dispute upon a hearing to determine whether P had title to the goods & upon P posting a bond to secure any damages that might be due D if replevin wrongful. UCC when goods have been specifically identified under a K and buyer is unable to cover by purchasing other goods, then the buyer has a right to replevy the goods in seller's possession even though title not yet passed.
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In replevin, is a judicial hearing generally required to make a prejudgment seizure valid?
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Yes
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Ejectment
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legal remedy in which owner of real property wrongfully dispossessed seeks to recover possession
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Constructive trust
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equitable restitutionary remedy. Equity creats a trust to compel D to reconvey title to prop unjustly retained.
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Requirements for constructive trust
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1. P must show D has title to prop & D's acquisition of title can be traced to prop D wrongfully acquired.
2. D's retention of prop would = unjust enrichment 3. (most courts) P has no adequate remedy at law (D's insolvency suffices) |
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Advantages of constructive trust over $ restitution
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1. P becomes a secured creditor (entitled to recover specific trust res)
2. P get benefit of any increase in value |
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What defenses apply to constructive trust?
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usual equitable defenses (e.g. laches, unclean hands, transfer of legal title to BFP)
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Equitable lien
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is lien imposed on D's prop to secure pymt of debt owed to P
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Requirements of equitable lien
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Same as for constructive trust plus showing lien can be imposed on prop to wh D holds title & to wh wrongfully obtained prop can be traced. It gives P priority in the prop over other creditors. It can be imposed on prop that was merely improved w/ P's prop or the proceeds thereof.
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Compare equitable lien to constructive trust
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If P's prop is not used to acquire title, only an equitable lien is available. The equitable lien can be enforced only up to the amt of P's claim; enhanced value of prop cannot be recovered. P may seek deficiency judgment after imposition of an equitable lien (wh is not allowed after imposition of a constructive trust. Equitable lien is cut off by transfer to a BFP.
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Injunction may be available where
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the legal remedy is inadequate. It results in an equitable restitutionary remedy when the court orders D to make specific restitution.
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Injuction is
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a decree ordering D to perform (mandatory) or refrain from performing (prohibitory) certain acts.
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Requirements for injuction
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1. inadequacy of legal remedy
2. prop right 3. feasibility of enforcing the decree 4. balancing of hardships. 5. defenses must be overcome |
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Why legal remedy may be inadequate
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1. $ damages will not afford adequate relief
2. damages highly speculative 3. multiplicity of suits 4. irreparable injury 5. prospecitive tort 6. inadequacy of replevin |
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Re: prop right requirement for injunction
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Traditionally, equity protected only prop rights. Today, some courts reject this requirement. Other stretch most anytg to include "prop."
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Feasibility of enforcing a decree means courts will assess
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1. methods of enfocement (e.g. court can imprison D until he complies but prohibition against imprisonment for debt precludes handling money decree this way. Also only parties & privies are bound by court's decree--not others)
2. mandatory v. negative injunctions (prohibitory much easier for court to enforce) 3. whether decree requires acts in other states. |
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Under methods of enforcement, a court can imprison D for
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contempt until he complies; but there is a prohibition against imprisonment for a money decree.
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Also under methods of enforcement, a court can only bind parties & privies by
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holding them--but not others--in contempt for disobedience.
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Though courts today have power to issue injuctions requiring acts in other states, problems of enforcement are
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1. supervision
2, punishing D if he should leave juris/n & not return (often overcome by sequestering D's local prop) |
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In balancing of hardships,
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the court will make sure that the hardship to D or the public, where relevant, does not outweigh the benefit P may get from the relief sought.
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Two views of balancing of hardships
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1. Strict (MIN) view
2. Liberal (MAJ) view |
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The strict view of balancing the hardships
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refuses to balance hardships holding that if P otherwise satisfies the requirements, an injunction should be granted as a matter of course. (exception in nuisance cases at prliminary injunction stage)
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Under the liberal view of balancing the hardships,
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if the harm to P does not outweigh the harm to D or the public, the court will deny the injunction & limit P to damages. However, court will not balance the hardships if D's conduct was intentional.
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Equitable defenses wh must be overcome are
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1. laches
2. unclean hands 3. freedom of speech prohibits injunction against personal defamations. 4. injunction sought against crim prosecution (generally no injunction will be issued against a crim prosecution unless "irreparable injury" to P will result 5. injunction sought against other crimes 6. injunction to protect politial or civil rights |
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Laches is
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an unreasonable delay by P in initiating his equitable claim that reaults in prejudice to D. The effect of delay is the key. Period of laches may be shorter (but never longer) than comparable SoL. Laches begins to run from the time P has knowledge.
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Unclean hands means
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the party seeking equitable relief must not be guilty of any "unfair dealing" w/ respect to the transac/n sued upon.
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W/ re: to injunction sought against crimes, equity
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does not have jurisd/n to enjoin crimes or enforce crim penalites. Con problems are raised, b/e equitable remedy would deprive D of procedural safeguards of crim law sys.
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Exception to equity enjoining crimes or enforcing crim penalites is
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the public nuisance exception--when crime is also a public nuisance, & crim prosecution is inadequate remedy.
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Traditionally equitable relief is not granted to protect political or civil rights, b/e
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decree would be diff to enforce & pol ?s deemed nonjusitciable. Modern trend is contra (ie. reapportionment)
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Interlocutory injunctions are used
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to preserve the status quo b/n parties until a full trial on the merits can be held.
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To obtian interlocutory injunction, P must show
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likely to prevail on merits & will suffer irreparable injury before trial can be held unless interlocutory injunction is granted.
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Preliminary injunction is
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granted only after a regular adversay-type court hearing. It generally remains in effect until conclusion of the full trial.
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TRO purpose is to
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preserve status quo
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TRO duration is
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usually 10 days (14 days in fed court)
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Can TRO hearing be ex parte?
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Yes
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TRO--are hardships balanced?
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Usually not
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Preliminary injunction purpose
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to preserve status quo
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Duration of preliminary injunction
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until completion of the judicial proceeding
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Must opponent be given notice of hearing in preliminary injunction?
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Yes
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Are hardships balanced in preliminary injunction?
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Yes
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Purpose of permanent injunction
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to grant the relief sought
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Duration of permanent injunction is
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as long as necessary
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Must opponent be given notice of permanent injunction?
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Yes
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Are hardships balanced in permanent injunction?
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Yes
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To be awarded damages for tort of misappropirate of $, what must P show?
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IDENTIFIABLE $ was taken
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Restitution in quasi-K is available for misappropriation of $ if P shows
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D was unjustly enriched by misappropriation of P's $
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When is a constructive trust available for misappropriated $?
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If P can specifically ID & trace stolen $ to D.
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Is constructive trusts available for misappropriated $ if funds are used only to pay off debts, etc?
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MAJ: no constructive trust cannot be placed against D's remaining assets b/e there is no trust res.
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What equitable remedy is avaiable when misappropriated $ was not used to obtain title to prop to wh they can be traced?
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equitable lien
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Is equitable lien appropriate when D commingles funds?
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yes & lien can be placed on both remaining $ & prop to wh it can be traced. Lien is limited to the lowest intermediate balance where funds were dissipated & balance sinks below P's claim.
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If D is a conscious wrongdoer, what remedy might be available other then equitable lien for misappropriation of $?
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constructive trust remedy on a pro rata basis.
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measure of damages for tortious destruction of chattels?
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value of chattel at the time destroyed, less salvage + interest. Loss of use not usually available unless chattel is not easily replaceable or chattel destroyed was income-producing.
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measure of damages for injury to chattels?
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either diminution in value or cost of repair (limited to FMV) + loss of use.
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measure of conversion damages for major dispossession of chattels
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FMV at time of conversion + interest & expense in pursuit of prop.
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What exceptions are there to the standard measure of FMV at time of conversion for dispossession of chattels?
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1. If value fluctuates, the usual measure is the highest value b/n time of wrong & reasonable time to cover.
2. If chattel is retained by D, value is measured at the time of seizure, demand or dispossession (P's option) 3. If chattel is improved & conversion is willful, the increased value is recoverable. |
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For conversion, is P required to mitigate damages by accepting the chattle back?
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No P may force D to purchase; but if P takes it back, damages are reduced by chattel's value when returned.
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How are damages figured in conversion ac/ns when there are successive converters?
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Ea is liable for the value of the chattel on day they acquired it--except for innocent converters who made improvement to the chattlels.
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Are punitive damages avaiable for conversion?
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Yes if malicious conduct.
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measure of damages for minor dispossession of chattel?
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Nominal damages or loss of use
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List restitutionary remedies available for dispossession of chattels?
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1. self help (reasonable force to recapture)
2. replevin 3. quasi-K 4. constructive trust if title obtained 5. equitable lien 6. mandatory injunction (only if chattle unique so $ damages & replevin inadequate) |
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Remedies available for simple trespass
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1. nominal damages where no actual injury
2. restitution for value of land--denied at CL/modern cases allow. 3. restitutionary relief 4. injunction to avoid multiplicity of suits |
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measure of damages available for trespass causing severence (e,g, timber, minerals)
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diminution in value of land or P can elect a conversion measure.
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Remedies other than damages available for trespass causing severence
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replevin
restitutionary damages (value of severed prop unless D acted willfully in wh event value of prop as improved) injunction (b/e land is unique) |
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Remedies for trespass causing injury other than severence (e.g. debris drumped on land)
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1. damages measured by cost of removing obstruction or rental value of land
2. mandatory injunction if damages are inadequate (where P has burden of removing debris) |
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Remedies for trespass effecting ouster
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1. ejectment is available where P proves the right to possession & wrongful w/holding by D--P recovers prop & mesne damages.
2. Improvements by innocent trespasser can be set off against mesne damages or can be compensated for under modern betterment statutes. 3. injuntive relief not available |
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Measure of damages w/ D's structure invades P's land or airspace (encroachments)
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If continuing trespass, measured by rental value of occupies land. If permanent trespass, FMV of occupied land.
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Restitutionary remedy for encroachments
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ejectment but diff to enforce (& as a practical matter not used)
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Equitable remedy for encroachments
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injunction
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Injunction is usual remedy for encroachments b/e
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1. legal remedies inadequate; land is unique & damages cannot compensate for loss; ejectment is impractical
2. re: balancing the hardships, most courts refuse to balance where D acted willfully. If encroachment inadvertent, MAJ will weight relative hardship but deny injunction only if D's hardship greatly outweighs Ps. Laches & public interest also enter into balancing process. |
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measure of damages for injury to realty
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diminution in value of land
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measure of damages for destruction of building
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value at time of destruction
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measure of damages for damage to building
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cost of repair + loss of use
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measure of damage for destruction of tress or crops
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either diminumtion in value of land or value of crops & tress
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measure of damages for damage to underlying real estate
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diminution in value
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measure of damages for destruction of easement
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diminution in value of the land
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measure of damages for interference w/ easement
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cost of restoration + loss of use, etc
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Is injunctive relief available for destruction of or interference w/ easements?
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Yes ("unique" prop, multiplicity of suits) provided easement is recognized by law. Courts will balance the hardships here.
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Waste is
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injury to realty by one in rightful possession against the interest of one entitled to future possession. (See Real Prop #23-24, 27-28. 30-34)
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remedies for vol waste
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1. diminumtion in value of land or cost of repair
2. injunction |
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remedies for permissive waste
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1. cost of repair
2. courts relunctant to grant injunctive relief, b/e supervision probs |
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remedies for ameliorative waste
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1. generally damages not available (b/e no loss)
2. injunction available only if tenant is short term |
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remedies for equitable waste
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1. no legal remedy, b/e equitable waste occurs when those not chargeable w/ legal waste effect material changes to premises
2. injunction will be granted (e.g. to prevent mortgagor from impairing security of mortgagee) |
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Nuisance is
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use by D of his own prop in a way wh causes unreasonable interference w/ use & enjoyment of P's prop. (Torts #259-267)
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measure of damages for nuisance
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loss of use & enjoyment, cost of abatement, emotional distress, etc.
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Do courts allow future damages for nuissance?
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No most court deny.
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permanent nuisance doctrine
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Some courts award permanent diminution if value for nuisance but there is split of authority as to when this is appropriate.
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equitable remedy for nuisance
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injunction usually in the negative form. Damages are inadequate b/e of the injury to land & possibilty of multiplicity of suits.
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How do courts balance hardships when issuing injunctions for nuisance?
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Some courts do not, b/e nuisance is usually intentional. Courts that do weigh factors wh include relative uses of the land, whether decree would require D to shut down a costly enterprise, & injury to the public (loss of jobs, useful product, etc.). Modern courts use conditional decress. If D has eminent domain rights, permanent injunction will be denied if compensation paid.
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Is "coming to the nuisance" a good defense?
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Ordinarily no but may effect recovery of damages where the purchase price reflected the claimed nuisance.
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usual remedy for personal injuries
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compensatory damages
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For personal injuries, restitution has no basis, b/e
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D receives no benefit
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Injunction is rare remedy for personal injuries, b/e
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harm are already happened; although relief is available for a continuing course of conduct.
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Compensatory damages include general noneconomic damages &
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special economic damages wh include all ec losses proximately caused (i.e. loss of earning, past & future medical expenses)
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How are future losses figured in special damages for personal injuries
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discounted to present value. MAJ courts permitted to consider inflation.
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What do general damages include in a personal injury compensatory award?
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pain & suffering, emotional distress, loss of enjoyment of life, etc
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Limitations on damages include
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collateral sources rule & avoidable consequences doctrine. (Torts #196-7)
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Survial of tort ac/ns
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Dec's estate can sue for personal injury damages accrued to Dec up to time of death. (Torts #293)
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Wrongful death ac/ns
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recovery for pecuniary injury resulting to spouse & next of kin. (Torts #295)
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Usual remedy for defamation
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damages (See Torts #87-114)
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Restitution will be denied in defamation b/e
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no benefit to D
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Injunctions against defamation rarely granted b/e
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would amt to unconstitutional prior restraint on speech. Declaratory relief may be best way to protect reputation.
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Remedies for invasion of privacy (See Torts #87-88; 120-122)
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damages & equitable relief in form of injunction. Injunction is most effective remedy for a continuing wrong, b/e damages are inadequate (speculative & likelihood of repetition). Traditional "prop right" requirement no longer a bar.
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Restitution will be denied for invasion of right to privacy torts, b/e
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D not enriched
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Ac/n for fraud requires
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actual injury
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Damage remedy for fraud include
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consequential; punitive where "malice" shown.
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measure of damages for fraud by seller:
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some courts: benefit of the bargain measure (diff b/n K value & actual value received)
other courts: limit to out of pocket loss |
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measure of damages for fraud by buyer:
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P recovers damages proximately caused. P may elect to rescind K & seek restitution or have a constructive trust imposed on prop obtained by fraud.
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remedies for inducing breach of K:
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damages for all losses proximately cause. Restitution & injunctive relief rare.
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remedy for interference w/ prospective advantage
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P can seek restitution of the "benefit" D would otherwise not have obtained. Damages usually not awarded b/e too speculative.
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Trade libel is
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stmt disparaging P's bus product for the purpose of inducing the public not to deal w/ him.
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Ac/n for trade libel requires proof of
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special damages (pecuniary loss). Most courts requires proof of loss of particular customers.
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remedies for trade libel
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damages proven. Traditionally injunctive relief not granted on free speech grounds unless trade libel occurred in conjunction w/ another tort. Modern trend is to grant relief on theory that harm to P outweighs free speech consideration.
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K compensatory damages are
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awards of $ to protect P's expectation interest.
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As w/ tort cases, damages must be
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causal
foreseeable certain unavoidable |
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K foreseeability is tested at
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time K is entered into (Hadley v. Baxendale)
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When figuring K compensatory damages, future profits of a new bus
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are difficult to recover b/e they are uncertain
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To be valid, liquidated damages clause
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1. at time of King, actual damages would have been extremely diff to ascertain &
2. amt stipulated was a reasonable forecast of the actual harm. (Otherwise it will be seen an unenforceable penalty.) |
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In figuring K compensatory damages, unavoidable means
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P cannot recover damages that reasonably could have been mitigated.
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In K ac/ns, punitive damages are
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not available.
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In K ac/ns prejudgment interest awards are
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statutory & usually granted only as to liquidated sums
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In K ac/ns attorneys' fees are recoverable if
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provided for by stat or K
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Restitutionary remedy or quasi K generally means
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law imposes an obligation to pay for unjust gain received pursuant to an unenforceable K.
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Grounds for restitutionary remedy in quasi-K
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D's unjust enrichment resulting from mistake, fraud, material breach of K or performance of an unenforceable K.
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K may be unenforceable b/e
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it is illegal, not in writing, d/ced by impossibility of frustration of purpose of disaffirmed b/e of incapacity. (See Ks cards)
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measure of benefit when K materially breached for nonbreaching party
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the value of her performance, even in excess of K rate (most juis/ns).
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measure of benefit when K materially breached for breaching party
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value of benefit conferred in excess of other party's damages
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measure of benefit when K is unenforceable
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depends on the nature of benefit. Specific resitution is available for recovery of tangible prop. Where the benefit takes the form of goods or services, P is entitled to the value, even in excess of the K rate (except in cases of impossibility where K rate is the max.)
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specific performance is
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a mandatory decree or injunction that orders a king party to perform that wh he has promised to perform under a K.
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Requirements for specific performance
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1. definite & certain K
2. K cond/ns of P satisfied. 3. inadequate legal remedy 4. mutuality of remedy not necessary 5. feasibility 6. Ac/n must not be blocked by any def/s. |
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Does a valid liquidated damages clause preclude specific performance?
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No unless construed as a true alternative to performance (i.e. giving the party the option of performing or paying).
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Traditionally remedy of specific performance granted only if D could have obtained like relief if P had breached, but today
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most states reject this view & require instead mutuality of performance--the court must be satisfied that it can secure P's counterperformance under the K (no prob if P has performed)
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Feasibility problems arise most in what types of Ks?
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personal services, land sale Ks (where party or land is out of state), construction Ks
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Def/s to specific performance
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1. laches
2. unclean hands 3. hardship 4. mistake & misrepresentation (of a type that results in hardship or constitutes a basis for rescission) |
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Laches concerns
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an unreasonable delay that prejudices D
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Unclean hands requires
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unfair dealing that arises out of the same transac/n
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Hardship defenses include
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1. inadequacy of consideration at time parties entered into K
2. subsequent hardship (i.e. discovery of oil land sale K entered into) MIN 3. unconscionable K 4. sits in wh harm to D or public greatly outweighs the harm that P wiould suffer if specific performance not granted. |
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What does rescission do?
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cancels the K
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2 types of rescission
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legal
equitable |
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legal rescission effected by
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P giving prompt notice & tendering back anything received under K. Thereafter P can seek restitutionary remedies of quasiK or replevin.
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equitable rescission is
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where court intervention is necessary
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grounds for rescission include
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many based on making the K voidable at option of one party (illegality, impossbility, lack of capacity, etc). Most significant for bar exam are mistake & misrepresentation.
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Re: mutual mistake as basis for rescission, all courts grant rescission for
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mutual mistake affecting the basis of the bargain. If mistake collateral or immaterial--no relief is available, although resulting hardship may serve as def to specific performance.
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Re: unilateral mistake as basis for rescission: traditional v. modern trend
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Traditional rule--rescission denied for one party's unilateral mistake unless the other party knew or should have known about mistake.
Today rescission granted if unilateral mistake go to basis of bargain where hardship to mistaken party outweighs the detriment to the other party's expectations. Some courts grant even absent a showing of hardship. |
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For court to grant rescission based on misrepresentation, P must show
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actual reliance on a material misrepresentation of fact. (Torts #123-125)
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Defenses to rescission
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laches
unclean hands |
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K damages v. rescision remedies
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P must elect remedies. If P pursues damages 1st, binding election occurs at commencement of ac/n. Ac/n for rescission does not preclude legal action, but P must elect one form of relief prior to judgment.
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For rescission based on mutual mistake, is neg of P a good def?
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Normally no
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Cancellation means
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termination or annulment of voidable written instrument by person entitled to do so on basis of apprehension that the outstanding instrument may cause injury to that individual.
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Reformation is
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an equitable remedy for modifying a written instrument to reflect the parties' true agreement.
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Reformation requires
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valid original K. (can't be used to fill in terms required by SoF)
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Diff b/n rescission & reformation
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rescission: no K b/e no true meeting of the minds
reformation: was meeting of the minds, but written K does not accurately reflect it |
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Grounds for reformation include:
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1. mistake of fact (scrivener's errors; appropriate if only one party knows writing did not conform)
2. mistake of law (i.e. mistake in meaning of legal term used in K) 3. fraud |
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Def/s to reformation include
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laches & sale to BFP
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Is parol evid rule a def to reformation?
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no
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Is SoF a def to reformation?
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MAJ: No MIN: permits reduction (not addition) of land in written instrument
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Is neg of P (e.g. failure to read) a def to reformation?
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No
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Can interlocutory injunctions (preliminary injunction or TRO) be issued in K ac/ns?
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Yes, as in tort, if irreparable injury can arise from a change in the status quo before final judgment.
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remedies available in Ks for personal prop
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1. damages usually adequate
2. specific performance |
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Under what circumstances is specific performance available in K for personal prop?
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1. chattel is "unique"
2. damages are highly speculative (e.g. output Ks) |
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Damages where seller breaches K to sell real prop
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buyer gets either out of pocket loss or benefit of the bargain, depending on the jurisd/n.
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Damages where buyer breaches real prop K
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seller gets diff b/n FMV & K price + consequential damages
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As alternative to damages, when is restitution available in land sale Ks?
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where there is fraud or a material breach of K. P (buyer or seller) can rescind & get restitution for benefits conferred.
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W/ restitutionary remedy in land sale K, recovery by buyer
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1. recovery by buyer is offset by value of the use of the land.
2. recovery by seller cond/ned on restoring part pymts less damages 3. defaulting buyer can get $ back less seller's damages |
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Equitable remedy for land sale K
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specific performance
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Legal remedy inadequate in land sale Ks b/e
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for buyer, land is unique; for seller, b/e seller wished to be rid of land & would have to bear the burden of finding a new buyer.
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Issue: feasibility of enforcing special performance in suit by seller against buyer subj to juris/n of court
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Contempt for failure to pay not available in a suit by the seller (b/e of prohibition against imprisonment for debt) but special performance is enforceable by levy of execution or foreclosure of seller's or grantor's lien.
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Issue: feasibility of enforcing special performance in suit by seller when buyer is out of court's jurisd/n
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Special performance void, b/e it is an in personam order to pay $.
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Issue: feasibility of enforcing special performance in suit by buyer when land is w/in jurisd/n of court
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Court can effect conveyance itself (e.g. deed executed by court officer).
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Issue: feasibility of enforcing special performance in suit by buyer when land is outside of jurisd/n of court
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Court cannot directly effect title to out of state land but decree is enforceable by contempt (where D subj to personal jurisd/n) or by suing on the decree at the situs of the land (full faith & credit afforded).
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Issue: ? marketable title & remedy of specific performance
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Marketable title is condition wh must be satisfied before seller can get specific performance. (See Real Prop 248-256)
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Issue: cond/n of "time is of the essence" & specific performance where K is wholly executory
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Late P cannot get specific performance
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Issue: cond/n of "time if of the essence" & specific performance where K is partly executory
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Equity may grant a defaulting buyer specific performance to provide relief from forfeiture--IF: (1) pymt is forthcoming w/in reasonable time (2) seller's loss is slight (3) full compensation is tendered for the delay & (4) enforcing a time cond/n is unconscionable.
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Issue: where time is not of the essence & specific performance
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relief will be granted if tender is made w/in reasonable time & D is compensated for delay.
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Issue: tender of note by buyer's assignee & specific performance
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usu. not deemed a fulfillment of the cond/n precedent required by specific performance; but tender of a note secured by purchase $ mortgage in state prohibiting deficiency judments is sufficient b/e principal secuirty is land, not the buyer's personal credit.
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Doctrine of partial performance w/ abatement in price arises in specific performance when
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seller cannot fully perform
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Where seller sues for specific performance of land sale K in wh there will be defect in seller's performance
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Specific performance granted only if the defect in seller's performance is immaterial & buyer can be compensated. Determinative factor is buyer's intended use of land.
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Where buyer sues for specific performance of land sale K under wh seller cannot fully perform
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Specific performance will be granted to buyer w/ abatement in the puchase price even if the defect is material--unless the deficiency is so large that the court would be making a new K. Buyer is allowed specific performance but not abatement where selling price is based on income generated from land & income is not affected by defect.
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Def/s to specific performance
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SoF, laches, unclean hands, sale to BFP
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If K for sale of land is oral, will specific performance be granted?
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No
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Can special performance be granted for oral land sale K under partial performance doc?
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Yes where there is part performance by buyer =ing possession + payment or possession + improvements (In CA adverse possession maybe)
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Theories used to prove part performance under land sale K
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evidentiary
hardship (but here seller cannot rely of buyer's act of part performance) |
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Problems of equitable conversion arise only where
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there is specifically enforceable K for sale of land (See Real Prop 244-247)
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Under doctrine of equitable conversion where seller dies,
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title goes to person entitled to seller's real prop while right to price goes to person entitled to seller's personal prop. Buyer must join seller's administrator & heir in suit for specific performance.
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Under doctrine of equitable conversion where buyer dies
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interest in land goes to the person entitled to his real prop. Seller must join buyer's administrator & heir in suit for specific performance.
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Under doctrine of equitable conversion where buyer & seller both die before closing
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all four parties (administrators & heirs) must be joined for specific performance
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Does doctrine of equitable conversion apply to option buy land
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MAJ: equitable conversion does not occur until an option is exercised
MIN equitable conversion relates back to time the option K executed. |
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Destruction or damage to prop--risk of loss & equitable conversion--MAJ
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buyer liable for purchase price, since the buyer is the equitable owner from the time K is executed.
MIN & modern trend: (Uniform Vendor & Purchaser Risk Act) risk of loss shifts to buyer only when buyer has possession or legal title. |
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Issue: destruction or damage to prop--risk of loss & equitable conversion--MIn & modern trend
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(Uniform Vendor & Purchaser Risk Act) Risk of loss shifts to buyer only when buyer has possession or legal title.
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Issue: destruction or damage to prop--equitable conversion & insurance proceeds
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If seller obtains insurance proceeds after risk of loss passed to buyer, most courts impose a constructive trust in favor of buyer.
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measure of damages when owner breaches construction K wh is wholly executory
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builder recovers lost proftis
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measure of damages when owner breaches construction K wh has been completed
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builder recovers K price
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measure of damages when owner breaches construction K wh has been partially completed
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builder recovers K price less cost of completion
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measure of damages when builder breaches construction K on wh builder has substantially performed
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owner recovers cost of restoration unless this would produce economic waste--in this case, recovery limited to diminution in value
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meausre of damages when builder is in material breach of construction K
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owner gets cost of completion less payments due + compensation for delay.
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restitution available if owner breaches a construction K
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builder can rescind & recover the value of the benefit conferred (not limited to K price in most states)
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restitution available if builder breaches a construction K
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owner is usually not entitled to restitution (no pymts made in excess of benefit received). Today a breaching builder can generally get restitution of benefits conferred in excess of the owner's damages (limited to K rate)
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Is specific performance available in construction Ks
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traditionally, supervision & feasibility problems precluded; today courts are more willing to overlook feasibility problems.
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measure of damages in personal services Ks if an employee breaches
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employer recovers the costs of obtaining a replacement.
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measure of damages in personal services Ks if the employer breaches
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employee gets wages due or promised, less avoidable damages. Recent cases find wrongful dismissal of an employee tortious, so employee may recover lost wages, emotional distress & punitive damages.
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restitution available if employer breaches a personal services K
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employee is entitle to the reasonable value of the services rendered (even if in excess of K rate)
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restitution available if employee breaches a personal services K
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employer can get restitution of paid but unearned wages. Employee can recover the value of services rendered up to K rate; but if breach is willful, deduction is made for employer's damages.
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Is specific performance available for personal service Ks?
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Damages are inadequate only if services are unique. Feasibility problems generally preclude specific performance.
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Why do feasibility problems preclude specific performance for personal service Ks?
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1. no way to compel "best effots"
2. decree would amt to unCon "invol servitude." 3. But court can use negative covenants--& specifically enforce an employee's promise not to work for another. |
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When will negative covenant be implied by modern courts in personal service Ks
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if employee promised full time or exclusive services
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Requirements for enforcing a negative covenant (not to work for anyone else) when employee breaches a personal service K include
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1. inadequacy of damages (i.e. services must be unique)
2. feasibility (but no feasibility problems when court orders person not to work for anyone else) 3. Cond/ns of nonbreaching employer furnishing proper place to work, payment of wages, etc. |
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Defenses wh breaching employee may have against negative covenant (not to work for anyone else)
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same as in specific performance. Argument that employee is prevented from earning a living rejected b/e employee not prevented from working for P or in another fied. Employer must be ready willing & able to accept D's performance.
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Are damages adequate remedy for breach of covenant not to compete
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yes, where employee's services are ordinary but not where services are unique or where trade secrets or good will are involved.
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When is injunctive relief available to enforce covenant not to compete?
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wjere damages inadequate & restriction is reasonable as to time & place & no broader than necessary to protect employer.
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Do liquidated damages preclude injunction in breach of covenant not to compete?
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No
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If covenant not to compete is too broad, how may a court handle it?
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Some courts: apply blue pencil rule to covert it to the extent reasonable. Other courts hold such covenant void as illegal restraints of trade. Courts are less flexible in finding reasonableness where the covenant bars an employee from competing after termination of employment.
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