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40 Cards in this Set
- Front
- Back
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What are the types of Tort Remedies?
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(1) Legal
-Damages (2) Legal Restitution -Restitutionary Damages -Replevin -Ejectment (3) Equitable Restitution -Constructive Trust -Equitable Lien (4) Equitable -Injunctive Relief |
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What are the types of Contract Remedies?
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(1) Legal
-Damages (2) Legal Restitution -Restitutionary Damages -Replevin -Ejectment (3) Equitable Restitution -Constructive Trust -Equitable Lien (4) Equitable -Specific Performance -Rescission -Reformation |
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What are the four requirements to receive Tort compensatory damages?
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(1) Causation
(2) Foreseeability (3) Certainty (4) Mitigation |
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What types of damages have to be sufficiently "certain" to be awarded?
Economic OR Non-Economic |
Economic Damages
Non-Economic damages are NOT subject to the certainty rules. |
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What is the general rule for calculating compensatory damages?
-Rule Statement |
Compensatory damages must paid in a single lump sum, be discounted to present value, and do not take into account inflation.
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Replevin General Rule?
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(1) π must have a right to possess
(2) There is a wrongful withholding by ∆ -Same as ejectment |
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In an action for replevin, what type of bond may ∆ post to hold the property until after a trial on the merits?
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A "re-delivery bond."
NOTE: If ∆ posts a re-delivery bond and is therefore able to hold onto the chattel until after a trial on the merits, π may be able to use this fact to establish that his legal remedy is inadequate and therefore seek an injunction to have the property returned. |
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Ejectment General Rule?
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(1) π must have a right to possess
(2) There is a wrongful withholding by ∆ -Same as replevin |
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An action for ejectment or replevin are almost always coupled with what?
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Money Damages
-This would allow π to recover for the period of time that he was dispossessed of the property |
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What is a deficiency judgement typically brought in conjunction with?
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Equitable Lien.
If the proceeds from the foreclosure sale are insufficient to cover the loss, the equitable lien holder may bring a deficiency judgment to recover the difference. Note that the lien holder's deficiency judgement would be categorized with the general creditors. |
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What MUST the ∆ have in order for the π to seek an equitable lien or a constructive trust?
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TITLE to the property.
If ∆ has sold the property to a BFP, π cannot pursue either remedy. |
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Who will prevail over a π in an action for constructive trust or equitable lien?
(1) BFP (2) General Creditors |
BFP will prevail
General creditors will not |
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When to use an equitable lien v. a constructive trust?
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(1) Equitable Lien
-Value of the property decreases -When acquisition of the NEW property cannot be traced SOLELY to π's property (2) Constructive Trust -Value of the property increases |
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Requirements for a Preliminary Injunction?
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(1) Irreparable injury
(2) Likelihood of success on the merits |
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What is the difference between a TRO and a preliminary Injunction?
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TRO:
(1) Can be ex parte -Notice not required -Adversarial proceeding not required (2) 10 day limit |
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What circumstances make legal remedies "inadequate"
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(1) Damages are too speculative
(2) ∆ is insolvent (3) Irreparable injury (4) Multiplicity of suits |
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What is the injunction checklist?
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"I Put Five Bucks Down"
I- Inadequate legal remedy P- Property right / Protectable interest F- Feasibility of Enforcement B- Balancing of hardships D- Defenses |
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What circumstances typically force courts to deny injunctive relief because enforcement is not "feasible?"
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(1) Act involves great taste, skill or judgment
(2) Act occurs over a period of time (3) Act must be performed out of state by a non-resident |
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Are you required to do a "feasibility" analysis for negative injunctions?
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NO
However, you must mention that there is no need to do this analysis. |
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When determining whether injunctive relief is appropriate, does a court ALWAYS "balance" the benefit to the π v. the harm to the ∆?
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NO, not if the ∆'s conduct was willful (more than negligent).
Otherwise the court will balance. |
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What is the key phrase when determining how a court will rule in regards to balancing the hardships for injunctive relief?
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"There must be a GROSS DISPARITY between detriment and benefit."
NOTE: If the disparity is only minor or equal, the court will grant the injunction for the π. |
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If π is denied injunctive relief does he go home empty handed?
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NO.
π is typically awarded damages in lieu of an injunction. |
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Whose interests are "balanced" for purposes of an injunction?
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Benefit to the π
v. Harm to the ∆ AND Harm to the Public NOTE: Do it in that order |
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What must be established to successfully plead the unclean hands defense?
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(1) Equitable Defense
(2) π's bad conduct RELATES to the conduct that gave rise to the lawsuit. -The defense is NOT that the π is a bad person generally. |
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What must be established to successfully plead the laches defense?
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(1) Equitable Defense
(2) DELAY in action (3) the delay is UNREASONABLE (4) and PREJUDICIAL |
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If laches prevents π from injunctive relief, is the analysis over?
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NO
See if π is entitled to money damages. |
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When is the 1st Amendment right to Free Speech a good equitable defense?
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When dealing with a Defamation
OR A Privacy Publication Tort |
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Although "equity will not enjoin a crime," what must you be weary of?
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Whether the crime is also a Tort and whether the Tort can be enjoined.
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Who is enjoined by an inunction?
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(1) Parties
(2) Employes and agents w/ notice (3) 3rd Parties w/ notice |
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How may an injunction be changed?
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(1) Modification
(2) Dissolution -This must be done through a court proceeding |
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What is the difference between civil and criminal contempt?
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(1) Civil
-Used to coerce -Fine per violation -Jail until compliance (2) Criminal -Used to punish -Flat fine -Set jail sentence |
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What causes of action NEVER have restitution as an available remedy?
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Encroachment
AND Nuisance |
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Is a clause in a contract that provides that one can get either actual damages OR liquidated damages valid?
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NO
This clause is invalid, and the parties may ONLY sue for damages, i.e., the attempted liquidated damages provision is not available. |
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Validity of liquidated damages provision?
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(1) Damages are VERY difficult to ascertain at time of contract formation
AND (2) This was a reasonable forecast of what they would be |
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If a liquidated damages provision is valid, what amount is available?
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ONLY the amount stated in the liquidated damages provision.
You CANNOT chose between the provision and damages. |
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Restitution is designed to prevent WHAT?
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UNJUST ENRICHMENT
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When will restitution be the appropriate remedy in a contracts fact pattern?
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(1) The k is unenforceable
OR (2) The k is breached |
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If π renders services pursuant to a K, but the services rendered are of a greater value than the contract allows, can π recover the greater amount if:
(1) K is unenforceable (2) ∆ breaches (3) π breaches |
(1) K is unenforceable
-YES, greater amount is allowed -Restitution for value of services rendered (2) ∆ breaches -YES, greater amount is allowed -Restitution for value of services rendered (3) π breaches -NO, greater amount is allowed -BUT restitution for value of services rendered CAPPED at the K prices |
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Can the breaching party receive restitution?
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Traditionally, NO
Modernly, YES for the value of the benefit conferred MINUS any harm caused to π due to the breach. NOTE: For a breach of K, this amount is capped at the value of the K. |
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What is the specific performance checklist?
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"I'm Doing Fine Mom and Dad"
I- Inadequate Legal Remedy D- Definite and Certain Terms F- Feasibility of Enforcement M- Mutuality of Remedy D- Defenses |
