Remedies

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Tort Remedies

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The 3 primary TORT REMEDIES are (1) damages, (2) restitution, and (3) injunction. [DRI]

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Contract Remedies

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There are 6 primary CONTRACT REMEDIES, which are (1) damages, (2) restitution, (3) specific performance, (4) injunction (prohibitive), (5) rescission, and (6) reformation. [DRIS RR]

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Damages

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DAMAGES are an award of money to an aggrieved party to compensate for any loss or injury. In tort cases, the objective is to make the plaintiff whole by awarding sufficient money to indemnify him for his loss.

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General Damages

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GENERAL DAMAGES are those damages the law presumes to reasonably or naturally flow from the tort. They need not be specifically pleaded; however, specific measure of damages must be named.

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Special Damages

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SPECIAL DAMAGES are those damages that are unique to the plaintiff, such as lost profits in a business tort. In fairness to the defendant, they must be specifically pleaded so that defendant may prepare a defense; plaintiff must establish (1) reasonable certainty of money amount, (2) proximate cause, and (3) minimum remoteness in time.

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Punitive Damages

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PUNITIVE DAMAGES (also called EXEMPLARY DAMAGES) are a legal remedy used to punish the defendant where the defendant is guilty of malicious and willful misconduct; available in equity.

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Nominal Damages

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NOMINAL DAMAGES are a minimal amount of money (e.g., one dollar), awarded for the purpose of declaring the rights of the plaintiff.

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Compensatory (Actual) Damages

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COMPENSATORY DAMAGES are paid to compensate the plaintiff for loss, injury, or harm suffered as a result of another's breach of duty. Also called ACTUAL DAMAGES. "Compensatory Damages" is the term used to mean "General Damages" for plaintiff's "loss of the bargain" for breach of contract. They are intended to place the non-breaching party in the same position as if the contract had been fully performed by restoring the "benefit of the bargain."

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Incidental Damages

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INCIDENTAL DAMAGES, a subcategory of special damages, are damages reasonably associated with or related to actual damages. Under UCC 2-710, it is the seller's commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer's breach. Under UCC 2-715(1), it is the buyer's expenses reasonably incurred in caring for goods after a seller's breach.

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Consequential Damages

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CONSEQUENTIAL DAMAGES, a subcategory of special damages, are losses that do not flow directly or immediately from an injurious act, but result indirectly from the act. In contract law, "Consequentil Damages" means "Special Damages" for breach of contract. As such, they are limited by HADLEY v. BAXENDALE's requirement that they be foreseeable and withing the contemplation of the parties at the time of contracting.

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Prejudgment Interest

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PREJUDGMENT INTEREST is interest accrued from the time the cause of action arose to the date of judgment, favored by the courts where the amount of damages is liquidated.

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Postjudgment Interest

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Courts favor POSTJUDGMENT INTEREST; i.e., interest that accrues between the date of judgment and the date plaintiff is compensated.

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Attorney Fees

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ATTORNEY FEES are usually not recoverable unless otherwise provided by statute or in the parties' contract.

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Avoidable Consequences Rule

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The AVOIDABLE CONSEQUENCES RULE requires that once a plaintiff has suffered an injury, he must take reasonable steps to mitigate additional losses; applies in torts and contracts settings.

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Collateral Sources Rule

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The COLLATERAL SOURCE RULE states that if the plaintiff is compensated for losses by a source independent of the defendant (e.g., an insurance company), the defendant's liability is not reduced by this amount.

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Destruction of Personal Property

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The specific measure of general damages where there is DESTRUCTION OF PERSONAL PROPERTY is the market value at the time and place of destruction, less salvage value (if any), plus prejudgment interest. For a retailer, market value is wholesale price; for a manufacturer, it's selling price. Restitution is not available since the defendant did not realize any gain.

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Damage of Personal Property

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Where there is DAMAGE OF PERSONAL PROPERTY, the measure of general damages is (1) the difference between the value of the chattel before the tort and its diminished value after or (2) the reasonable cost of repair, whichever is less, plus loss of use damages, measured by the rental value of a substitute if chattel has a rental value.

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Used Clothing

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The measure of general damages for destruction of, or damage to, USED CLOTHING is the value to the owner, not retail or sentimental value.

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Conversion (Trover)

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The specific measure of GENERAL DAMAGES for CONVERSION is the market value at the time and place of the CONVERSION, plus prejudgment interest. Because CONVERSION is an intentional tort, punitive (exemplary) damages may also apply.

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Chattels with Fluxuating Values

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There are 3 approaches measuring damages for CONVERSION for CHATTELS WITH FLUXUATING VALUES (all include prejudgment interest): (1) Market value at the time and place of the conversion, (2) highest value from the date of the CONVERSION to the time of trial, or (3) highest value from the date of discovery of the CONVERSION to a reasonable time in which someone would have replaced the item in the marketplace (New York Rule - Majority View).

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Restitution

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RESTITUTION is a remedy available in both law and equity that allows the plaintiff to recover any unjust enrichment defendant gained as a result of a wrong done to the plaintiff. It's based upon the wrongdoer's gains rather than the innocent party's losses.

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Legal Restitution Remedies

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LEGAL RESTITUTION REMEDIES are (1) EJECTMENT (realty), (2) REPLEVIN (personalty), (3) DETINUE (personalty), and (4) ASSUMPSIT (money).

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Writ of Replevin

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The WRIT OF REPLEVIN is a common law legal (not equitable) RESTITUTIONARY remedy that permits the sheriff to seize personal property unlawfully acquired and return it to the plaintiff. The unjust enrichment required for restitution is satisfied by defendant's possession of the chattel.

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Equitable Replevin

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EQUITABLE REPLEVIN is appropriate where property is unique and a remedy at law is inadequate. It involves a court issuing a mandatory injunction to force the wrongdoer to return the property to the plaintiff.

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Detinue

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DETINUE is a common law legal (not equitable) RESTITUTIONARY remedy that permits the sheriff to seize personal property lawfully acquired but unlawfully withheld and return it to the plaintiff. The unjust enrichment required for restitution is satisfied by defendant's possession of the chattel.

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Suit in Assumpsit

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Where defendant has profited from the unlawful possession of plaintiff's property and plaintiff is entitled to file suit for CONVERSION, plaintiff may waive the action for tort and sue in ASSUMPSIT, a legal quasi-contract remedy, to seek defendant's unjust enrichment, judgment payable in money.

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Constructive Trust

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Where property was acquired wrongfully, equity will impose a CONSTRUCTIVE TRUST upon the property, making the wrongdoer a constructive trustee, having no fiduciary duties, and having the sole duty, under penalty of contempt, of transferring legal title to the rightful beneficiary.

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Equitable Lien

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A LIEN is a dollar-for-dollar legal interest a creditor has in another's property until a particular debt is satisfied. Where a defendant wrongfully uses plaintiff's property, or money form the sale of plaintiff's property, to improve property defendant already owns, plaintiff may have an EQUITABLE LIEN on defendant's property. A plaintiff must be able to trace his property to the defendant's property. Unlike a CONSTRUCTIVE TRUST, plaintiff does not enjoy any appreciation of the property's value, since he is not considered the equitable owner of the property.

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Trespass to Land

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The measure of general damages for TRESPASS TO LAND is the diminished value of the land or the cost of restoring the land, whichever is less. For simple trespass, where there is no actual damage, nominal damages are available. For a continuing trespass, injunctive relief would be appropriate; where plaintiff loses use of property, seek rental value; and where title is in dispute, preliminary injunction can be sought until title is resolved. Plaintiff may no waive the tort of trespass and sue in assumpsit.

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Destruction of or Damage to Buildings

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The measure of general damages for the DESTRUCTION OF OR DAMAGE TO BUILDINGS is the value of the building at the time of the destruction, less depreciation, or the replacement cost of the building.

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Waste

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WASTE occurs when someone in rightful possession of realty (either a life tenant in a life estate or a tenant in a landlord-tenant relationship) deliberately (voluntarily) or negligently (permissively) does permanent injury to the land.

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Voluntary Waste

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The available remedies for VOLUNTARY (i.e., deliberate) WASTE are (1) general damages, measured by diminished value or replacement cost, whichever is less, (2) injunctive relief during the term of the tenancy to prevent depletion of plaintiff's interest, and where appropriate, (3) punitive damages.

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Permissive Waste

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The remedies available for PERMISSIVE WASTE, where a tenant negligently fails to keep the property in good condition, is the same as for VOLUNTARY WASTE, except no punitive damages or injunctive relief will be granted.

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Ameliorating Waste

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For AMELIORATING WASTE, where an act of the tenant has increased the value of the property, no injunction is available in equity, but the tenant is liable for any increased taxes resulting from the increase in the property's value.

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Equitable Waste

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EQUITABLE WASTE occurs when a tenant, not otherwise liable under common law for permissive waste, engages in willful, destructive, malicious, or extravagant waste. Equity will restrain such a person.

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Severance

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When someone trespasses on land and takes something away from the land that has a value as a chattel once it's removed, the plaintiff can treat the SEVERANCE in two way: (1) as a TRESPASS TO LAND, making the measure of general damages the diminished value of the land or the cost of restoration, whichever is less; or (2) as CONVERSION, since the severed materials now are personal property. Replevin and restituion are generally available where there has been severance, and injunction may be necessary if there are multiple torts.

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Severance - Knowing v. Innocent Trespassers

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Where a KNOWING TRESPASSER engages in severance of materials from land, the plaintiff is entitled to the fair market value of the material after severance. An INNOCENT TRESPASSER, however, is liable only for the preprocessed value of the material; i.e., the inground value of the mineral or the stumpage value of the tree. By statute certain "timber states" like California allow treble damages for bad faith trespassers and double damages for good faith trespassers.

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Private Nuisance (Remedies)

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The remedies for PRIVATE NUISANCE are DAMAGES and INJUNCTION. Where the court will abate the nuisance by injunction, temporary damages will be available for any harm caused from the time the nuisance began to the date the injunction was issued (for harms such as rental loss, annoyance of tenants, cost of cleanup). Where the courts will not enjoin the activity (after balancing the hardships and interests of the plaintiff and the defendant, enve considering the public interest), plaintiff is entitled to permanent damages, which are a one-time damage award for the property's diminished value resulting from the permanent nuisance.

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Public Nuisance (Remedy)

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Generally, a private citizen does not have standing to bring a suit for PUBLIC NUISANCE unless he or she has a special injury; that is, an injury different in kind from that suffered by the general public

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Encroachment

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Where a defendant knowingly builds a structure overlying the plaintiff's property line, the plaintiff is entitled to INJUNCTIVE relief. Where the ENCROACHMENT was a mistake, the court will balance the hardships of the plaintiff and defendant. Where no INJUNCTION is issued, plaintiff will be entitled to DAMAGES reflecting the rental value of the encroached area of the estate or the diminished value of the property as a result of the ongoing encroachment.

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Interference with Easement

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Same as for Encroachment

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Ejectment

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Where a person, either as a result of a landlord-tenant relationship or otherwise, has unauthorized possession of plaintiff's real property, no equitable remedy (like INJUNCTION) would be appropriate, since there exists an adequate remedy at law; in this case, EJECTMENT (a legal RESTITUTIONARY remedy) which treats the trespasser's possession as a form of unjust enrichment, which possession the sheriff may return to plaintiff by ejecting the trespasser. Plaintiff is also entitled to the rental value (mesne profits) of the property as DAMAGES for the time it was in the trespasser's possession.

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Restitution at Law

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RESTITUTION AT LAW seeks to restore the status quo by compelling the defendant to return unjust benefits; that is, to prevent unjust enrichment.

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Restitution Regarding Specific Property (At Law)

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RESTITUTION REGARDING SPECIFIC PROPERTY is obtained by having the sheriff seize the property, whether real property (through "ejectment") or personal property (through "replevin" if illegally obtained or "detinue" if legal obtained) and return it to the plaintiff.

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Restitution Regarding Money in Defendant's Possession (At Law)

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RESTITUTION REGARDING MONEY IN DEFENDANT'S POSSESSION can be obtained by a SUIT IN ASSUMPSIT (also known as "quasi-contract" or "contract implied in law"), whereby plaintiff, rather than pursuing damages to compensate for his losses, can instead (because he has an "election of remedies") waive the tort of conversion and seek a money judgment (by suing in assumpsit under the common count of "money had an received") to recover defendant's ill-gotten gains.

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The Six Common Count Assumpsit Claims (Legal Remedies)

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The SIX COMMON COUNT ASSUMPSIT CLAIMS created by the law courts are (1) Money paid to defendant for his use, (2) Money had and received, (3) Land occupied and used (rental value of land), (4) Goods sold and deliver (fair market value at time and place of taking), (5) Quantum Meruit (reasonable value of services), and (6) Quantum Valebant (reasonable value of goods). (Mickey Mouse Uses Good Queens Quickly).

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Restitution in Equity

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RESTITUTION IN EQUITY is available where there is unjust enrichment of the defendant at the plaintiff's expense, and that unjust enrichment can be traced to an asset the defendant is holding. In such cases, the plaintiff may obtain a CONSTRUCTIVE TRUST or an EQUITABLE LIEN on the asset.

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Constructive Trust

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If the defenant used the plaintiff's asset to acquire full or partial ownership in another asset, the plaintiff is entitled to a total or partial CONSTRUCTIVE TRUST in that other asset. With a CONSTRUCTIVE TRUST, the law considers the plaintiff the owner of the asset, thus he would enjoy any appreciation of the asset, and the asset would not be subject to a claim by defendant's creditors.

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Equitable Lien

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Where the defendant uses plaintiff's property to improve property the defendant already owns, plaintiff may obtain an EQUITABLE LIEN on defendant's property for the value of plaintiff's property. Plaintiff thus has a preferred status over other general creditors of the defendant, but has no title to the asset. However, where plaintiff qualifies for a constructive trust, he may elect to take an equitable lien instead if the value of the property depreciates.

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Lien

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A LIEN is a dollar for dollar creditor preference against an asset. Most liens are statutory liens.

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Commingled Money

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COMMINGLED MONEY creates special issues with regard to tracing plaintiff's money.

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The Rule in Clayton's Case (Commingling)

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The RULE IN CLAYTON'S CASE was borrowed from banking law and it states that the first money into the account is the first money spent (FIFO). This rule is the least fair to the plaintiff.

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The Rule in Hallett's Case (Commingling)

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The RULE IN HALLETT'S CASE was meant to be a fairer alternative to the Rule in Clayton's Case by holding that regardless of what order the money is deposited, the wrongdoer is presumed to have spent his money first. Usually produces better outcome but still can result in unfairness to the plaintiff.

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The Option Rule (Modern Rule on Commingling)

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The OPTION RULE (modern rule) permits the plaintiff to obtain, (1) if the defendant is a conscious wrongdoer, a proportionate constructive trust on the account and on any property traceable from the account's funds or, (2) if the defendant is an innocent wrongdoer, an equitable lien on the account or on property purchased with account funds, but only up to the dollar amount of the claim.

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Lowest Intermediate Balance Rule

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Under the LOWEST INTERMEDIATE BALANCE RULE, where a defendant deposits plaintiff's funds into an account and subsequently commingles additional funds with plaintiff's, the plaintiff may only obtain a constructive trust or equitable lien on the lowest subsequent amount in the account that is equal to or lower that the plaintiff's claim. (Revisit this definition).

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Subrogation

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SUBROGATION is an equitable remedy that prevents unjust enrichment of the defendant where the plaintiff was a surety for defendant's debt and discharged that debt to defendant's creditor. Plaintiff can be substituted for previous creditor, obtaining all his rights against defendant. (Revisit this definition).

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Injunction Analysis

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Thomas A. Edison Is Pouring Himself The Drink: Tort Defined, Adequacy of Legal Remedy, Enforceability, Irreparable Harm, Personal/Property Right of Plaintiff, Hardship Balance, Type of Injunction, and Defenses.

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Accounting for Profits

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ACCOUNTING FOR PROFITS is an equitable restitutionary remedy that is really a mechanism for discovering the unjust enrichment of the defendant. Where plaintiff's property can be traced, he may obtain a constructive trust or equitable lien. Where it cannot be traced, he may be able to file a suit in assumpsit. (Revisit).

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Defense to Resitution - Bona Fide Purchaser for Value

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Where a person is a BONA FIDE PURCHASER FOR VALUE, his purchase of the property will cut off all constructive trust and equitable lien remedies.

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Bona Fide Purchaser for Value

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A BONA FIDE PURCHASER FOR VALUE is an innocent purchaser of property who had no notice of any other party's claim of title to the property. Donees are not BFP's because gifts lack consideration.

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Laches

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LACHES is a doctrine by which a court will deny relief to a plaintiff who has unreasonably delayed or been negligent in pursuing a right or claim - usually an equitable one - when that delay or negligence has prejudiced the defendant. Statutes of limitation bear on but do not control the use of LACHES.

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Unclean Hands

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UNCLEAD HANDS is the doctrine whereby the court will refuse to aid either party to an equitable action if the plaintiff has engaged in inequitable, unethical, or illegal conduct related to the subject of the litigation, even where (1) the plaintiff's conduct caused no injury and (2) the defendant participated in the misconduct.

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Temporary Restraining Order

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A TEMPORARY RESTRAINING ORDER (TRO) is a court order preserving the status quo and forbidding the defendant from taking some action until the litigant's application for a preliminary or permanent injunction can be heard. Federally, TRO's are limited to 10 days, but can be renewed. TRO's can be issued ex parte on affidavits of plaintiff without affording the defendant notice and opportunity to be heard, subject to suit for damages by defendant if wrongfully issued. Plaintiff must (1) post bond and (2) show emergency (irreparable harm from delay if hearing required).

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Preliminary Injunction

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A PRELIMINARY INJUNCTION is a prohibitory injunction issued after notice and adversarial hearing. It preserves the status quo and remains in force pending trial on the merits, after which it will either be dissolved or made permanent. No emergency need be present, but irreparable harm must be shown. Bond required unless already posted for a TRO. Factors a court considers are (1) balance of hardships, (2) likelihood of plaintiff succeeding on the merits, and (3) public interest.

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Permanent Injunction

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A PERMANENT INJUNCTION is a final solution to a matter under dispute. Courts still balance hardships.

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Physical Harm to Trade Relations

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PHYSICAL HARM TO TRADE RELATIONS is a minor business tort whereby a wrongdoer causes physical harm to a plaintiff or his business that results in lost profits to the plaintiff, knowing plaintiff is a trademan, and intending to harm trade relations. Plaintiff must prove special damages, but tort is subject to punitive damages as well.

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Interference with Customer's Person

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INTERFERENCE WITH CUSTOMER'S PERSON is a minor business tort whereby a wrongdoer causes physical harm to the plaintiff's customer with the intent to deprive the plaintiff of customer's business, causing the plaintiff a loss of business expectancy. Plaintiff must prove special damages.

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Trademark Violation

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Damages for lost sales, Restitution of any profits realized, accounting for profits, if traced, constructive trusts or equitable liens, or if untraceable, can sue in assumpsit under common law count of "money had and received" for unjust money gains realized by the defendant. If there is ongoing activity, an injunction may be used to stop the ongoing interference.

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Trade Name

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Similar to trademark violation.

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Trade Secrets

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DAMAGES for when trade secret is used in a way that hurts the plaintiff's business; RESTITUTION for unjust enrichments, thus need ACCOUNTING FOR PROFITS; INJUNCTION to stop continuing activity.

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Commercial Disparagement (Trade Libel)

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At common law, plaintiff had to show actual lost profits or sales. DAMAGES, INJUNCTION for continuing disparagement.

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Inducing Breach of Contract

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DAMAGES (loss of expectancy), PUNITIVE, INJUNCTION, RESTITUTION.

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Survival Action

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A SURVIVAL ACTION is an action brought by a decedent's estate under a survival statute to cover decedent's pain, suffering, and other loss incurred from the time of the accident until decendent's death.

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Wrongful Death

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A WRONGFUL DEATH claim is a claim brought by the survivors of the decedent who are dependent on the decedent for support from the date of the death to the time the support would have ended had the decedent lived.

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Defamation

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DAMAGES are for injury to reputation. Simple slander requires a showing of special (pecuniary) damages, where slander per se and libel presume damages. "Prior Restraint" INJUNCTIONS violated the First Amendment.

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Invasion of Privacy

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INVASION OF PRIVACY is a violation of one's right to be left alone.

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Contract General Damages

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GENERAL DAMAGES for a breach of contract are intended to protect the plaintiff's benefit of the bargain, which is measured by the difference between the contract price and the fair market value of a replacement at the time of the breach.

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Contract Special Damages

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SPECIAL DAMAGES are limited by the rule of HADLEY v. BAXENDALE, which allows the plaintiff to recover only the damages that were within the contemplation of the parties at the time the contract was made. Such damages must be foreseeable, reasonably certain, and unavoidable.

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Liquidated Damages

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LIQUIDATED DAMAGES are damages the parties agree in advance that the breaching party of a contract will pay. In order for a court to enforce a liquidated damages clause, (1) it must be a fair approximation of the anticipated harm caused by the breach (not merely a penalty for nonperformance), and (2) proof of loss must be difficult or impracticle to establish. Where a contract declares liquidated damages to be the sole remedy, provided the clause is valid, they will be the sole remedy. Where the clause is unenforceable, plaintiff may still prove actual damages.

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Reliance Damages

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RELIANCE DAMAGES are available where an aggrieved party is unable to prove expectation damages because the standard measure is inapplicable or because consequential damages cannot be shown with requisite certainty. It is an alternative measure of damages determined by the costs incurred by the aggrieved party in reliance on the contract.

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Rescission

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RESCISSION is the undoing of a contract due to a serious formation problem, such as fraud, undue influence, duress, mistake, or substantial breach by the other party. Historically, rescission at law required that plaintiff give notice of his intent to rescind and tender back the consideration or goods before he could make a claim for rescission. In equity, this was not required, but modernly some courts do require it. For fraud, plaintiff can seek RESCISSION, then sue in ASSUMPSIT under the common count of "Money Had and Received" (a legal RESTITUTION remedy). RESCISSION in equity is appropriate where you need an order to rescind, as when unique property (e.g., real estate) must be reconveyed to plaintiff. California has combined law and equity rescission.

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Defenses to Rescission

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The DEFENSES TO RESCISSION are (1) Laches, (2) Unclean Hands, (3) Affirmance of Contract, and (4) Estoppel by Conduct.

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Reformation

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REFORMATION of contract is availiable where the parties to the contract had a meeting of the minds, but the contract itself does not reflect their agreement. The court may reform the contract to conform to the parties' original agreement when (1) there is mistake or fraud, (2) the parties believed the instrument reflected their agreement but it did not, (3) one of the parties knows the contract does not reflect the agreement, but the other party does not, or (4) there was a "scrivener's error." REFORMATION seeks to fix a contract so it may be affirmed and then enforced. Parol evidence being necessary to reform a contract, a very high standard of proof is required. Many courts require a "clear and convincing" standard, and some require a "beyond a reasonable doubt" standard.

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Defenses to Reformation

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The DEFENSES TO REFORMATION are (1) Laches, (2) BFP, (3) Ratification by Plaintiff, (4) Assumption of Risk of Mistake, and (5) Changed Position in Reliance on Instrument Itself.

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Specific Performance

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SPECIFIC PERFORMANCE is an equitable remedy whereby a court enjoins a party to do what he promised under a contract. It applies only to sales contracts involving real property and unique chattel (not services), since for such things a remedy at law is deemed to be inadequate. [Charles Atlas Earns Much Cash Delivering Elephants].

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Misrepresentation (Generally)

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MISREPRESENTATION is a tort, thus it give rise to tort remedies. Plaintiff may (1) affirm the contract, keep consideration received, and sue for tort damages for misrepresentation or (2) disaffirm the contract and rescind it.

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Misrepresentation Damages

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There are two views on MISREPRESENTATION DAMAGES: (1) Out-of-Pocket Damages, which is measured by the difference between what the Plaintiff paid and the actual value received (tort approach) plus punitive damages; and (2) Benefit of the Bargain or Expectation, which is the difference between the actual value of what is received and the value if would have had as respresented (contract approach).

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Misrepresentation Rescission

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For MISREPRESENTATION, plaintiff may, instead of suing for damages, disaffirm and seek to RESCIND the contract, recover any consideration already paid, and give back any consideration received. If rescission is unreasonably delayed or contract is affirmed, plaintiff will be estopped.

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Mistake

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A MISTAKE is a belief not in accord with existing fact, but it's not an error of judgment. A MISTAKE may be a grounds for rescinding a contract if the mistake is such a serious mistake that goes to a basic assumption underlying the agreement. In order to rescind a contract, the mistake must (1) be one of fact and not of law, (2) be material, (3) be mutual, unless the non-mistaken party knew or should have known of the mistake.

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Defense to Breach of Contract - Duress

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DURESS occurs where a party enters into a contract under the threat of physical or financial harm. When such occurs, the contract or conveyance made under the DURESS is subject to rescission; plaintiff may also see restitution where necessary.

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Defense to Breach of Contract - Undue Influence

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UNDUE INFLUENCE occurs when defendant improperly deprives someone of his or her free will, effectively substituting defendant's own objectives in the contract (look for someone (1) in a subordinate position or (2) vulnerable within a fiduciary relationship). Where this occurs, the injured party may seek rescission of the contract, along with restitution.

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Defense to Breach of Contract - Unconscionability

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UNCONSCIONABILITY as a defense occurs when the terms of a contract include extreme disparity in bargaining positions, harsh provisions, excessive price, or other terms that shock or offend the conscience of the court. Where terms are unconscionable, the court will not enforce those provisions, but will seek to preserve the remainder of the agreement.

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Land Sales Contract Simple Seller Breach

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In a LAND SALES CONTRACT where the seller breaches, general damages are measured by the difference between the contract price and the fair market value on the date of breach. MAJORITY allows for restitution for amounts paid plus reliance expenses; the MINORITY of jurisdictions limits the buyer to out-of-pocket expenses plus restitution, at least where seller acts in good faith. (Revisit)

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Land Sales Contract Seller Defective Title Breach

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Where the existence of DEFECTIVE TITLE causes a breach of a LAND SALES CONTRACT, buyer can recover (1) compensatory damages for any payments made, (2) any reliance expenses made as a result of buyer's reliance upon seller representation, (3) rescission, and (4) restitution for any payments made to seller. No specific performance can be granted unless the defective title can be corrected. (Revisit).

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Land Sales Contract Seller Breach for Acreage Deficiency

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Where there is an ACREAGE DEFICIENCY and the contract states that a specified number of acres are being sold, as opposed to gross acreage with a mere estimation of acreage, the buyer is entitled to rescission and restitution if fraud or mistake is involved or specific performance with abatement, which is a decrease in contract price in proportion to the deficiency of acreage.

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Land Sales Contract Seller Delay in Performance of Agreement

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Where a party to a LAND SALES CONTRACT DELAYS PERFORMANCE of his or her duties under the contract, the injured party may seek (1) compensatory damages for the rental value during the period of delay, and (2) restitution.

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Land Sales Contract Simple Buyer Breach

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In a LAND SALES CONTRACT where the buyer breaches, general damages are measured by the difference between the contract price and the fair market value on the date of breach. This assumes the fair market value is less. Further, the buyer may seek rescission and restitution, and may even seek specific performance since a remedy at law is not adequate to protect the seller's interest in acquiring the purchase price.

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Breaching Owner on Losing Building Contract (Builder's Remedies)

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Where parties have entered into a LOSING CONTRACT for the BUILDER, but the OWNER BREACHES, builder would not want to sue for benefit of the bargain damages, because there are none. Rather, he would bring a lawsuit in assumpsit under the common count of quantum meruit for the reasonable value of services rendered.

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Writ of Execution (Post-judgment Writ of Attachment)

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Where a judgment debtor refuses to pay a court order judgment, the court may issue a WRIT OF EXECUTION, which orders a sheriff to (1) seize property in possession of the judgment debtor that he or she owns and (2) sell that property to satisfy the judgment.

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Writ of Garnishment

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Where a judgment debtor refuses to pay a court ordered judgment, the court may, in addition to, or instead of, ordering a writ of attachment, issue a WRIT OF GARNISHMENT, which orders any wages, bank accounts, or other property of the breaching party that is in the hands of third parties be paid over to the judgment creditor to satisfy the judgment.

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Prejudgment Writ of Attachment

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A PREJUDGMENT WRIT OF ATTACHMENT issues before judgment, and is intended to compel defendant's appearance. In this respect it differs from an execution (i.e., a post-judgment attachment). In some states this process can be issued only agasint absconding debtors, or those who conceal themselves; in other it is issued in the first instance, so that the property attached may respond to the exigency of the writ, and satisfy the judgment.