Remedies

Front 1

Tort Remedies

Back 1

1. Damages:
- Compensatory
- Nominal
- Punitive
- Interest and Attorney Fees

2. Restitution
- Restitution Damages
- Replevin
- Ejectment
- Constructive Trust
- Equitable Lien
- Injunction

Front 2

Compensatory Damages

Back 2

- For loss or injury
- Damages mus be causal, foreseeable, certain & unavoidable

Front 3

Nominal Damages

Back 3

Where no actual injury sustained

Front 4

Punitive Damages

Back 4

- For willful, wanton, or malicious conduct
- For ITs and recklessness

Front 5

Due Process Limits to Punitive Damages

Back 5

- Grossly excessive PDs violate DP
- PDs should be no more than 9x the compensatory damages
- Can consider non-party injuries as evidence of reprehensibility but NOT for determining the amount of PDs - DP violation if do

Front 6

Key Point to Due Process for Punitive Damages

Back 6

Did D have fair notice of the possible magnitude of the Pds when considering:
- Reprehensibility of Ds conduct
- Disparity between actual or potential harm suffered by P & the punitive award
- Difference between PDs award & the criminal or civil penalties authorized for comparable misconduct.

Front 7

Interest & Attorney Fees

Back 7

Only by statute or K

Front 8

Restitutionary Remedies

Back 8

Alternative to compensatory damage3s when D unjustly enriched

Front 9

Restitution Damages

Back 9

D pays P value of benefit unjustly obtained

Front 10

Replevin

Back 10

- P recovers possession of wrongfully taken/detained chattel
- Recovers before trial --> pre-trial hearing for valid seizure, bond posted

Front 11

Ejectment

Back 11

Restore P's possession of real property from which ousted

Front 12

Constructive trust

Back 12

Trust to compel D to reconvey title to P when D acquired title to property at the expense of another
- Its advantage over monetary restitution is that P is secured creditor and gets any increase in property value

Front 13

Requirements for constructive trust

Back 13

- D obtained title to property via wrongful acquisition of P's property.
- D's retention is unjust enrichment
- P does not have adequate legal remedy

Front 14

Defenses to constructive trust

Back 14

Laches, unclean hands, transfer of title to BFP

Front 15

Requirements for Equitable Lien

Back 15

- Imposed on property to which D holds title & to which wrongfully obtained property can be traced.
- Gives P priority in property over other creditors
- Can be imposed on property that was merely improved w/P's property or proceeds thereof

Front 16

Equitable Trust v. Constructive Trust

Back 16

- If P's property is not used to acquire title, only EL available.
- Lien can be enforced only up to amount of P's claim
- Enhanced value of property does not go to P w/EL
- P may seek deficiency judgment after imposing EL
- EL cut off by transfer to BFP

Front 17

Injunction

Back 17

Available if legal remedy is inadequate

Front 18

Why a legal remedy may be inadequate

Back 18

- $ damages inadequate
- Damages highly speculative/difficult to assess
- Multiplicity of suits
- Irreparable injury bc loss of something unique
- Prospective tort
- Inadequacy of Replevin to recover chattels

Front 19

Inadequacy of Replevin to recover chattels

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- Hearing requirement
- D can recover property by posting bond
- Difficulty in executing the writ

Front 20

Feasibility of Enforcing Injunction

Back 20

- No injunction if difficult to enforce/supervise

Front 21

Mandatory v. Negative Injunctions

Back 21

- Negative = bar from doing something. Enforce with contempt
- Mandatory requires D to do something & is difficult to enforce

Front 22

Decrees requiring acts in other states

Back 22

Allowed bc can supervise by framing injunction negatively and sequestering property

Front 23

Balancing Hardships

Back 23

Hardship to D should not greatly outweigh benefit P may get.
-Balance unless D acted intentionally
- P only gets damages if balances in D's favor.
- No balacing for TRO bc temporary
- Preliminary injunction, balance at hearing
- Permanent injunctions - balance at trial

Front 24

Injunctive relief in tort

Back 24

1. Inadequacy of legal remedy
2. Feasibility of enforcing judgment
3. Balancing Hardships
4. D's must overcome

Front 25

Defenses must be overcome

Back 25

- Laches
- Unclean hands
- Freedom of speech
- Injunction against criminal prosecution
- Injunction against crimes

Front 26

Laches

Back 26

- Ps unr/able delay in bringing claim results in prejudice to D
- Can be less time than SOL
- Laches starts running when P knows his rights are infringed

Front 27

Unclean hands

Back 27

P cannot be guilty of unfair dealing re: transaction suing upon

Front 28

Freedom of speech

Back 28

No injunction against personal defamation

Front 29

Injunction against criminal prosecution

Back 29

Only if irreparable injury to P will result

Front 30

Injunction against crimes

Back 30

-Generally no jx in equity
- Public nuisance exception if criminal prosecution inadequate

Front 31

Misappropriation of $$ - Damages

Back 31

Damages: P must show identifiable money taken

Front 32

Injuries to personal property

Back 32

1. Destruction of chattels:
2. Injury to chattels
3. Dispossession of chattels:
4. Punitive damages if malicious conduct

Front 33

- Successive converters

Back 33

liable for value of chattel when acquire it except to the extent of improvements made by previous innocent converter

Front 34

Misappropriation of $$ - Restitutionary Remedies

Back 34

Restitution:
-Quasi-K if D unjustly enriched by misappropriation of P's $
- Constructive trust if P can specifically ID trace stolen $ to D if funds used only to pay off debts, etc., majority view is that no Ct will lie against D's remaining assets bc there is no trust res.
- Equitable lien: if misappropriated funds not used to obtain title to property or D commingles the $

Front 35

Injury to personal property - Destruction of chattels

Back 35

- value of chattel when damaged = salvage + interest.
- Loss of use if chattel is income-producing

Front 36

Injury to personal property - Injury to chattels

Back 36

is the diminution of value OR cost of repair + loss of use.

Front 37

Injuries to Personal Property - Dispossession of chattels

Back 37

- Conversion damages = FMV at time of conversion + interest + cost of pursuit.
- No duty to mitigate by accepting chattel
- If P does accept, damages reduced by value at return.

Front 38

Injuries to Personal Property - Trespass to Chattel for minor dispossession

Back 38

Nominal damages for loss of use

Front 39

Injuries to Personal Property - Restitutionary Remedies

Back 39

Replevin, quasi-K CT, EL, mandatory injunction

Front 40

Injuries to Real Property

Back 40

1. Trespass to Land
2. Encroachments
3. Destruction of or injury to realty
4. Destruction of or interference with easements
5. Waste
6. Nuisance

Front 41

Injuries to Real Property - Trespass to land

Back 41

Simple, trespass causing severance, trespass causing other injury, trespass effecting ouster

Front 42

Simple trespass

Back 42

- Nominal if no qactual damages
- Injunction to avoid multiple suits
- Restitution

Front 43

Trespass causing severance

Back 43

- Decreased land value or conversion measure
- Replevin
- Restitution (value of property severed)
- Injunction

Front 44

Trespass Causing Other Injury

Back 44

- Cost of removing if trespass by object
- Rental value if trespass by person
- Mandatory injunction if damages inadequate

Front 45

Trespass effecting ouster

Back 45

- Ejectment
- No injunction

Front 46

Encroachments

Back 46

- D's structure invades P''s land or airspace
- Damages: if continuing, rental value of P's land. If permanent, FMV of P's land
- Ejectment not available bc impracticable.
- Injunction is available if legal remedies inadequate. But, you have to balance the hardships if D's encroachment inadequate.

Front 47

Destruction or injury to Realty

Back 47

- Decreased value of land if damaged
- If building destroyed, P can recover its value at destruction
- If trees/ crops destroyed, damages either dimiuntion of value of land or value of crops/trees

Front 48

Destruction of or Interference w/ Easements

Back 48

Damages -
If destruction, decreased value of land. If Interference, cost of restoration and loss of use.
-Injunction possible if easement recognized at law.

Front 49

Waste

Back 49

- Injuryto realty by one in rightful possession againstinterst of one entitled to future possession.

Front 50

Voluntary Waste

Back 50

- Deliberate destructive acts. Damages are decreased value of land or cost of repair or injury.

Front 51

Permissive waste

Back 51

Premises allwed to fall into disrepair. Damages = cost of repair.

Front 52

Ameliorative Waste

Back 52

Alterations to realty that increase value. NO damages. Injunction// short-term tenant.

Front 53

Equitable waste

Back 53

Those not chargeable w/legal waste effect material changes to premises. Remedy = Injunction

Front 54

Nuisance

Back 54

Damages = loss of use & enjoyment, costs of abatement, ED. No Future Damages.

Negative Injunction = Damgages inadequate bc land unique & multiplicity possible. Hardships usually not balanced bc nuisance intentional

Front 55

Damages for Personal Injuries

Back 55

- Compensatory
- No restitution
- Injx only if cont'ing course of conduct.
- Economic losses (special damages)
- Non- Economic losses

Front 56

Economic Losses (special damages)

Back 56

- Recover all economic losses proximately caused.
- Recover in lump sum & future losses discounted to present value.

Front 57

Non-Economic Losses

Back 57

Pain & suffering, ED, loss of enjoyment.

Front 58

Limits on damages for PI

Back 58

- Duty to mitigate
- Collateral source

Front 59

Defamation damages

Back 59

- No injx
- No restitution
- Declaratory relief to protect reputation
- Damages

Front 60

Privacy damages

Back 60

- Damages for mental anguish
- No restitution
- Injunction for continuing harm

Front 61

Fraud Damages

Back 61

PUnitive if malice

Front 62

Business tort damages

Back 62

- Inducing br/K = damages for proximately caused losses.
- Interference w/ prospective advantage = restitution
- Trade libel = special damages must be proved by P, no injunction

Front 63

Contract Remedies

Back 63

- Damages
- Restitution (quasi-K)
- Specific Performance
- Rescission
- Cancellation
- Reformation

Front 64

Compensatory damages

Back 64

- $ to protect P's expectation interest
- Damages must be causal, foreseeable, certain & unavoidable.
- Foreseeable at time K entered.
- NO punies
- Interest & fees if by stat. or K

Front 65

Restitution for Quasi-K

Back 65

Measure of benefit.
If a material breach, the neon breaching party can recover value of performance or value of benefit conferred in excess of OPY's damages.

If K unenforceable, specific restitution available for recovery of tangible property. If benefit, goods/services, P can recover value of them.

Front 66

Specific performance.

Back 66

- K must be valid w/definite and certain terms.
- K conditions of P fully satisfied.
- Legal remedy inadequate
- Decree feasibly enforced
- No defense available

Front 67

Legal remedy inadequate

Back 67

Liquidated damages can still be inadequate bc they are not intended as an alternative to performance.

Front 68

Defenses available to null specific performance

Back 68

- Laches
- Unclean hands
- Hardship: inadequate consideration coupled w/ unconscionable K OR consideration grossly inadequate OR disproportionate hardship to D w/specific performance
- Mistake & misrepresentation that = hardship or basis for rescission.

Front 69

Rescission

Back 69

- Cancels contract resulting from fraud, mistake, duress, or where K is materially breached.
- Usually accompanied by restituion of the benefits confered.
- Terminates K and restores both parties as though K didn't happen.

Front 70

Procedures for Rescission at Law and in Equity

Back 70

At law = by parties. P notifies D and gives back anything received in K. Then, can seek restitution in quasi-K or replevin.

In equity = by court decree bc necessary

Front 71

Ground for rescission

Back 71

- Things that would make it voidable
- Mistake in formation
- Misrepresentation

Front 72

Mistake in formation for rescission

Back 72

- Rescission for mutual mistakes affecting basis of the bargain.
- For unilateral mistakes, only if OPY knew or should have known

Front 73

Misrepresentation

Back 73

Rescission if shwo reliance on material representation

Front 74

Defenses

Back 74

- Laches and unclean hands
- Election of remedies
- Choice of substantive rights

Front 75

Election of remedies: rescission

Back 75

- Action for damages affirms K if sought first, bars subsequent axn to rescind.
- Action to rescind does not preclude seeking damages, but P must elect one form of relief before judgment

Front 76

Choice of substantive rights: rescission

Back 76

no rescission if P affirms K by word or conduct

Front 77

Cancellation of K

Back 77

Only if VOIDABLE

Front 78

Reformation of K

Back 78

- Equitable remedy to modify K to relect parties' actual intent.
- Valid original K req'd

Front 79

when is a K valid for reformation?

Back 79

- Free from rescission grounds
- Not ambiguous or incomplete
- Cannot use to fill in terms required by SOF.
- Not if there's mutual mistake re: the meaning of the words

Front 80

Grounds for reformation

Back 80

- K does not reflect parties' valid agreeement bc of mistake or fraud.
- If the mistake relates to entering agreement in first place, must use rescission.
- Mistake = clerifcal error or re: legal meaning of term.
- K fraudulently represented as a reflection of parties' agreement

Front 81

Defenses

Back 81

Laches, sale of subject matter to BFP
- Parole evidence rule, SOF, and P's negligence are NOT defenses.

Front 82

Damages for Ks to buy/sell personal property

Back 82

- Damages generally adequate
- Specific performance if unique items or damages too speculative.

Front 83

Damages for Ks to buy/sell real property

Back 83

- Damages
- Restitution
- Specific performance

Front 84

$ damages for Ks to buy/sell realty

Back 84

- If S breaches, B gets out of pocket loss OR benefit of the bargain.
- If B breaches, S gets FMV - K price + consequentials

Front 85

Restitution damages for Ks to buy/sell real property

Back 85

Restitution if fraud or material breach --> rescind and get restitution.

- Reocvery by B offset by value of use of land
- S's recovery conditioned on restoring part payments
- Defaulting B recover payments in excess of S's damages (to avoid forfeiture)

Front 86

Specific Performance for Ks to buy/sell real property

Back 86

- Inadequacy of legal remedy bc land is unique
- Feasibility of enforcing
- Satisfaction of conditions
- Defenses

Front 87

Feasibility of enfocing in land K

Back 87

- Suit by S to enforce by levy of execution or foreclosure
- Suit by B - court can effect onveyance of land in jx

Front 88

Satisfaction of coniditions in SP for land K

Back 88

- S must show marketable title to get SP
- Time is of the essence
- Tender of note by B's assignee (not fulfillment of condition precedent)
- Partial performance w/abatement

Front 89

Time is of the Essence for SP in land Ks

Back 89

Where K wholly executory:
- Late P cannot get SP

Where K partly executory
- Equity may grant defaulting B SP if payment is forthcoming w/in r/able time, S's loss is slight, full compensation is tendered for the delay & enforcing time condition unconscionable

Front 90

Partial performance w/Abatement for SP in land ks

Back 90

- Arises where S cannot fully perform
- Where S sues: SP only if defect is immaterial & B compensated for deficiency
- Where B sues: SP even if defect material unless so large court making newK. SP, but no abatement where selling price based on income generated from land income unaffected by defect.

Front 91

Defenses for damages for land Ks

Back 91

- SOF
- NO SP if oral
- Exception for part performance consisting of possession plus payment or possession plus improvements.
- Laches
- Unclean hands
- Sale to BFP

Front 92

Equitable conversion problems

Back 92

Death of party:

-if S dies, title to person entitled to S;s real property & price to person entitled to S's personal property. B must join S's adminstrator & heir in suit for SP.

- Bdies, interest in land to person entitled to B's real property. S must join B's administrator & heir in suit for SP

- B & S die. Their heirs and administrators must be joined for SP

Front 93

Construction K Damagesif Owner Breaches

Back 93

Builder gets lost profits if K executory, K price if completed K price - cost to complete if partial performance.

Front 94

Construction K damages if builder breaches

Back 94

- If B has substantially performed, owner recovers cost of restoration unless would produce waste. If waste, recovery is diminution of value.
- If B materially breaches, owner gets cost of completion less payments due, plus compensation for delay.

Front 95

Restitution damages for construction k

Back 95

- Owner breaches, B can rescind and recover value of benefits conferred.
- If builder breaches, no restitution for owner.

Front 96

Specific performance for Construction K

Back 96

Supervision problems.

Front 97

Damages for Personal Services Ks

Back 97

EE br/k= ER gets cost of finding replacement.

ER br/k= EE gets wages due/promised - avoidable damages

Front 98

Restitution for Personal Services K

Back 98

ER br/k = EE gets r/able value of services rendered.

EE br/k = ER gets restitution of paid but unearned wages

Front 99

Negative covenants during term of employment K

Back 99

Court may specifically enforce EE's promise not to work for another.
- Promise implied if EE promised full-time or exclusive services.
- Must show damages inadequate
- Conditions to EE's performance must be satisfied.
- Defenses include those available against SP

Front 100

Negative covenants after termination of employment

Back 100

Promises in employment Ks restricting EE from competing or for certain period following employment

- Damages adequate where EE's services are ordinary but not if services are unique or trade secrets, or if good will involved.
- Injunctive relief appropriate where damages inadequate & restriction is r/able as to time and place and is no broader than necessary to protect employer.