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92 Cards in this Set
- Front
- Back
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Correct order of determining what remedies apply
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1. Legal Remedies
2. Restitution Remedies (Legal & Equitable) 3. Equitable Remedies |
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Torts: Types of LEGAL REMEDIES
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Money Damages
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Torts: Types of RESTITUTIONARY REMEDIES
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A. Legal Restitutionary Remedies
---i. Restitutionary Damages ---ii. Replevin ---iii. Ejectment B. Equitable Restitutionary Remedies ---i. Constructive Trusts ---ii. Equitable Liens |
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Torts: Types of EQUITABLE REMEDIES
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Injunctive Relief
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Torts Legal Remedies: Damages
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Defendant is ordered to pay money to plaintiff.
Types of damages include: ---i. Compensatory ---ii. Nominal ---iii. Punitive |
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Torts Legal Remedies: COMPENSATORY DAMAGES
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Compensatory damages are based on the injury to the plaintiff. They put the injured party in the position he would have been in had the injury not occurred.
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Torts Legal Remedies: Requirements for Compensatory Damages
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1. Causation (actual, “but for” causation)
2. Foreseeability (proximate causation; foreseeable at the time of the tortious act) 3. Certainty (cannot be too speculative) 4. Unavoidability (plaintiff must take reasonable steps to mitigate the damages) |
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“All or Nothing” rule
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For future damages, plaintiff must show that they are more likely to happen than not.
>50% = All damages awarded <50% = Nothing awarded |
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Torts Legal Remedies: Compensatory Damages: Personal Injury Torts: Economic Losses
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Special Damages, such as medical expenses and lost earnings.
Calculation requires sufficient certainty |
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Torts Legal Remedies: Compensatory Damages: Personal Injury Torts: Non-Economic Losses
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General Damages, such as pain and suffering, permanent disfigurement.
Jury may award any amount it wishes, subject to proper instructions. |
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Torts Legal Remedies: Measure of Compensatory Damages
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“Plaintiff is entitled to compensatory damages to put him in the position he would have been in had this wrong and resulting injury not occurred. On these facts…”
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Torts Legal Remedies: Compensatory Damages: Personal Injury Torts: Form of Judgment Payment
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“The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule).”
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Torts Legal Remedies: NOMINAL DAMAGES
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Nominal damages are awarded where plaintiff has no actual injury. They serve to establish or to vindicate the plaintiff’s rights.
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Torts Legal Remedies: PUNITIVE DAMAGES
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Punitive damages are awarded to punish the defendant.
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Torts Legal Remedies: Requirements for Punitive Damages
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1. To get punitive damages, plaintiff must first have been awarded compensatory or nominal damages (or restitutionary damages)
2. Defendant’s type of fault must be greater than negligence. 3. Punitive damages must be relatively proportionate to actual damages (i.e. single digit multiple of actual damages) |
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Torts: purpose of RESTITUIONARY REMEDIES
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Restitutionary remedies are based on the theory that the defendant should not be unjustly enriched.
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Torts Restitutionary Remedies: LEGAL RESTITUTIOANRY REMEDIES
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Legal restitutionary remedies are based on the benefit to the defendant. The amount is calculated based on the value of the benefit.
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Difference between COMPENSATORY and RESTITUTIONARY damages
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Compensatory damages focus on injury to plaintiff.
Restitutionary damages focus on value of benefit to defendant. (Talk about both, then award the larger sum.) |
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Torts Legal Restitutionary Remedies: REPLEVIN
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With replevin, plaintiff recovers possession of specific personal property.
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Torts Legal Restitutionary Remedies: Replevin 2-part test
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“At issue is whether plaintiff can obtain replevin. To do so, plaintiff must meet a 2-part test:”
1. Plaintiff has a right to possession 2. There is a wrongful withholding by defendant |
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Torts Legal Restitutionary Remedies: Replevin Timing
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Plaintiff can recover the chattel before the trial.
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Torts Legal Restitutionary Remedies: Replevin: recovering before trial
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1. Plaintiff must post a bond. Sheriff can then repossess the property for plaintiff.
2. Defendant can defeat an immediate recovery by posting a redelivery bond, then keep the chattel until after the trial. |
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Torts Legal Restitutionary Remedies: Replevin couples with…
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Replevin is almost always coupled with damages (compensatory or restitutionary) for lost use or benefit to the defendant during the time of detention.
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Torts Legal Restitutionary Remedies: EJECTMENT
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With ejectment, the plaintiff recovers possession of specific real property.
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Torts Legal Restitutionary Remedies: Ejectment 2-part test
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“At issue is whether plaintiff can obtain ejectment. To do so, plaintiff must meet a 2-part test:”
1. Plaintiff has a right to possession. 2. There is a wrongful withholding by defendant. |
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Torts Legal Restitutionary Remedies: Ejectment: Status of Defendant
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Ejectment is available only against a defendant who has possession of the property (e.g. adverse possessor; holdover tenant).
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Torts Legal Restitutionary Remedies: Ejectment couples with…
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Ejectment is almost always coupled with damages (compensatory or restitutionary) for lost use or benefit to the defendant during the time of detention.
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Torts Restitutionary Remedies: EQUITABLE RESTITUTIONARY REMEDIES
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To award plaintiff when defendant has acquired title.
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Torts Restitutionary Remedies: Equitable Restitutionary Remedies: CONSTRUCTIVE TRUST
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A constructive trust is imposed on improperly acquired property to which defendant has title. Defendant serves as “trustee” and MUST RETURN the property to the plaintiff.
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Torts Restitutionary Remedies: Equitable Restitutionary Remedies: EQUITABLE LIEN
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An equitable lien is imposed on improperly acquired property to which defendant has title. Property will be subject to an immediate COURT-DIRECTED SALE. The monies received go to the plaintiff.
If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant’s other assets. |
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Torts Restitutionary Remedies: Equitable Restitutionary Remedies: Rules
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1. Legal remedy (money damages) must be inadequate (e.g. because defendant is insolvent, or the property is unique)
2. Tracing is allowed. 3. BFP’s prevail over plaintiff 4. Plaintiff prevails over unsecured creditors |
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Torts Restitutionary Remedies: Equitable Restitutionary Remedies: Choosing constructive trust or equitable lien
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1. If property value has gone up, go with a constructive trust
2. If property value has gone down, go with an equitable lien (after the sale, you’ll get a deficiency judgment) 3. If defendant’s property cannot be traced solely to plaintiff’s property (e.g. fixtures in defendant’s own house), only an equitable lien is available |
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Torts Equitable Remedy: INJUNCTIVE RELIEF
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With injunctive relief, the defendant is ordered (enjoined) to do or refrain from doing something.
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Torts Equitable Remedy: injunctive relief: timing of a permanent injunction
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A permanent injunction is issued after a full trial on the merits
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Torts Equitable Remedy: injunctive relief: timing of a temporary injunction
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A temporary (preliminary; interlocutory) injunction is issued pending trial on the merits.
(On essay, if in doubt, go with permanent injunction.) |
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Torts Equitable Remedy: injunctive relief: temporary injunction 2-part test
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“At issue is whether plaintiff can obtain temporary/preliminary injunctive relief. To do so, plaintiff must meet a 2-part test:”
1. IRREPARABLE INJURY (plaintiff will incur injury while waiting for a trial—he needs relief now.) (Must be balanced against any hardship defendant will suffer if injunction is granted.) 2. LIKELIHOOD OF SUCCESS (more than 50% chance of winning) |
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Torts Equitable Remedy: injunctive relief: temporary injunction bond requirement
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“The court should impose a bond requirement on the plaintiff to reimburse defendant if the injunction injures him/her and the plaintiff does not succeed.”
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Torts Equitable Remedy: injunctive relief: temporary restraining order
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A TRO is issued pending a hearing to determine whether preliminary injunction should issue.
Limited to 10 days (14 days in federal court) On essay, must emphasize immediacy of harm. |
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Torts Equitable Remedy: injunctive relief: temporary restraining order 2-part test
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“At issue is whether plaintiff can obtain temporary restraining order. To do so, plaintiff must meet a 2-part test:”
1. IRREPARABLE INJURY (plaintiff will incur injury while waiting for a trial—he needs relief immediately.) (Must be balanced against any hardship defendant will suffer if TRO is granted.) 2. LIKELIHOOD OF SUCCESS (more than 50% chance of winning) |
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Torts Equitable Remedy: injunctive relief: temporary restraining order hearing
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May be ex parte:
---i. notice is not required (but good faith effort must be made) ---ii. adversarial proceeding not required |
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Torts Equitable Remedy: injunctive relief: PERMANENT INJUNCTION 5-part test
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“I’ll Put Five Bucks Down”
1. Inadequate legal remedies 2. Property right or protectable interest 3. Feasibility of enforcement 4. Balancing of Hardships 5. Defenses |
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Torts Equitable Remedy: injunctive relief: permanent injunction: inadequate legal remedies: why replevin might be inadequate
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i. Sheriff may not be able to recover it (e.g. find or identify the chattel)
ii. Defendant can file a redlievery bond (then run off with or destroy the chattel) |
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Torts Equitable Remedy: injunctive relief: permanent injunction: inadequate legal remedies: why ejectment might be inadequate
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The sheriff may refuse to act (e.g. he won’t want to tear down a house that slightly encroaches on plaintiff’s property)
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Torts Equitable Remedy: injunctive relief: permanent injunction: inadequate legal remedies: why money damages might be inadequate
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i. too speculative
ii. defendant is insolvent iii. irreparable injury iv. avoiding a multiplicity of actions (e.g. there has been a prior history of litigation between the parties) |
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Torts Equitable Remedy: injunctive relief: permanent injunction: Property Right/Protectable Interest
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Traditionally, equity will grant relief only where a protectable property right is involved. Modernly, you don’t even need a property right—any legitimate protectable interest will suffice.
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Torts Equitable Remedy: injunctive relief: permanent injunction: Feasibility of Enforcement
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There may be an enforcement problem for mandatory injunctions based on:
---i. difficulty of supervision ---ii. concern with effectively ensuring compliance |
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Torts Equitable Remedy: injunctive relief: permanent injunction: Feasibility of Enforcement: situations where injunction may be denied
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i. act involves application of great taste, skill, or judgment
ii. series of acts over a period of time iii. out-of-state act is required of a non-resident defendant |
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Torts Equitable Remedy: injunctive relief: permanent injunction: Balancing of Hardships: rules
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1. There must be a gross disparity between defendant’s detriment and plaintiff’s benefit
2. Even then, there will be no balancing if defendant’s conduct was willful 3. If you decide to balance hardships, in whole or in part, award plaintiff monetary damages 4. Hardship to the public is also taken into account (balancing often applies to nuisance or trespass) |
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Torts Equitable Remedy: injunctive relief: permanent injunction: Defenses
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A. Unclean Hands
B. Laches C. Impossibility D. Free Speech |
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Torts Equitable Remedy: injunctive relief: permanent injunction: Defenses: Unclean Hands
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Plaintiff has engaged in improper conduct related to THIS lawsuit
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Torts Equitable Remedy: injunctive relief: permanent injunction: Defenses: Laches
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Laches is concerned with the effect of the passage of time.
The clock starts to run when plaintiff learns of the injury. The delay cuts off the right to relief when it has been both UNREASONABLE and PREJUDICIAL to the defendant. If laches applies, consider awarding plaintiff money damages. |
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Torts Equitable Remedy: injunctive relief: permanent injunction: Defenses: Impossibility
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Impossible for defendant to carry out terms of injunction
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Torts Equitable Remedy: injunctive relief: permanent injunction: Defenses: Free Speech
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Deny injunction for defamation or privacy publication branch torts (false light, private facts)
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Contracts: Types of LEGAL REMEDIES
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Compensatory Damages and Nominal Damages (but no Punitive)
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Contracts: Types of RESTITUTIONARY REMEDIES
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A. Legal Restitutionary Remedies
---i. Restitutionary Damages ---ii. Replevin ---iii. Ejectment B. Equitable Restitutionary Remedies ---i. Constructive Trusts ---ii. Equitable Liens |
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Contracts: Types of EQUITABLE REMEDIES
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i. Specific Performance
ii. Rescission iii. Reformation |
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Contracts Legal Remedies: COMPENSATORY DAMAGES
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Based on injury to the plaintiff. Consist of direct damages and consequential damages.
Four requirements: ---i. causation ---ii. foreseeability (at time of formation) ---iii. certainty ---iv. mitigation |
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Contracts Legal Remedies: compensatory damages: DIRECT DAMAGES
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Those damages that naturally flow inherently from the wrong.
Typically measured as expectation damages. |
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Contracts Legal Remedies: compensatory damages: CONSEQUENTIAL DAMAGES
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Available for related damages that were foreseeable at the time of formation (such as lost profits or lost reputation).
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Contracts Legal Remedies: NOMINAL DAMAGES
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Allowed
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Contracts Legal Remedies: PUNITIVE DAMAGES
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Not allowed.
Thus, if defendant’s conduct is willful, just try to characterize it as a tort case. |
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Contracts Legal Remedies: 2-part test for validity of Liquidated Damages clauses
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1. Damages are very difficult to ascertain at time of contract formation
2. This would be a reasonable forecast of what damages would be. (If amount is excessive, this would be a “penalty” and thus unacceptable). |
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Contracts Legal Remedies: Liquidated Damages clauses that say “either…or”
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Such clauses are invalid, so plaintiff gets compensatory damages.
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Contracts restitutionary remedies: typical fact pattern
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Contract “fails” after plaintiff has already rendered performance (partial or complete)
For example, the contract is unenforceable, or it is breached. |
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Contracts restitutionary remedies: contract unenforceable
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Plaintiff can get restitutionary damages for full value of property/money given to, or services rendered for defendant.
Plaintiff can get back amount greater than the contract rate, since contract is invalid. Plaintiff can get property back if it’s unique or defendant is insolvent |
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Contracts restitutionary remedies: contract breached
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If plaintiff is non-breaching party: can recover full value of benefit or property.
If plaintiff is breaching party: cannot get greater than contract rate, and award is reduced by damages suffered by defendant as a result of breach. |
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Contracts Equitable Remedies: SPECIFIC PERFORMANCE
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Defendant is required to perform the contract
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Contracts Equitable Remedies: 5-part checklist for specific performance
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“I’m Doing Fine Mom & Dad”
1. Inadequate legal remedy 2. Definite and certain terms 3. Feasibility of enforcement 4. Mutuality of Obligation 5. Defenses |
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Contracts Equitable Remedies: specific performance: Inadequate Legal Remedy
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Money damages may be inadequate if:
1. damages are too speculative 2. defendant is insolvent 3. multiple suits would be necessary 4. the thing bargained for is unique |
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Contracts Equitable Remedies: specific performance: Inadequate Legal Remedy: ways property might be “unique”
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1. land (for both buyer and seller)
2. one of a kind or very rare 3. personal significance to buyer 4. circumstances make it unique (tested at time of litigation) |
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Contracts Equitable Remedies: specific performance: Inadequate Legal Remedy: Effect of a Liquidated Damages Clause
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A liquidated damages clause does not make money damages adequate.
Specific performance may still be available (unless clause says “this is to be the only remedy”). |
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Contracts Equitable Remedies: specific performance: Definite and Certain Terms
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Plaintiff must be able to show the contract is valid.
Specific performance requires more certainty and definiteness than an action for money damages at law. |
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Contracts Equitable Remedies: specific performance: Feasibility of Enforcement
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Personal services contracts are not specifically enforceable because of
1. the enforcement problem 2. involuntary servitude |
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Contracts Equitable Remedies: specific performance: Feasibility of Enforcement: 2-part test for covenants not to compete
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1. the services are unique
2. the scope (geographic and duration) is reasonable |
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Contracts Equitable Remedies: specific performance: Mutuality of Obligation
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Plaintiff must be able to show her contract conditions have been fulfilled (already performed, ready & able to perform, or excused from performing)
“Mutuality of remedy, which denied specific performance to the injured party if specific performance was not available to the other party when the contract was executed, is no longer required. Instead, specific performance only requires that the aggrieved party must show that it can and will perform its own obligations under the contract.” |
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Contracts Equitable Remedies: specific performance: Mutuality of Obligation: Deficiencies Fact Pattern: Seller is Plaintiff
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If seller is plaintiff: can enforce if defect is minor; cannot enforce if defect is major (unless it can be cured by closing)
“If specific performance is granted, the court will abate the purchase price to take into account the defect.” |
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Contracts Equitable Remedies: specific performance: Mutuality of Obligation: Deficiencies Fact Pattern: Buyer is Plaintiff
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If buyer is plaintiff: can enforce contract even if defect is major; cannot enforce if defect is “very major”
“If specific performance is granted, the court will abate the purchase price to take into account the defect.” |
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Contracts Equitable Remedies: specific performance: Mutuality of Obligation: “Time is of the Essence Clause” Fact Pattern
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Equity abhors forfeitures.
Courts can look at the following factors to avoid harsh result of forfeiture: ---a. Loss to seller is small ---b. Tardiness is de minimis ---c. Waiver (e.g. seller has accepted late payments in the past) ---d. Buyer would suffer undue hardship If specific performance is not granted for some reason, the modern trend is to award restitutionary relief |
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Contracts Equitable Remedies: specific performance: Defenses
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1. Mistake
2. Misrepresentation 3. Statute of Frauds |
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Contracts Equitable Remedies: specific performance: Defenses: Rule for Statute of Frauds/Part Performance on a Land Contract
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If one has rendered (i) valuable performance, (ii) in reliance on the contract, this will take the case out of the Statute of Frauds and specific performance will be granted.
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Contracts Equitable Remedies: specific performance: Defenses: Valuable part performance of a land contract
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Either valuable services (under the modern trend), or any two of the following three:
---i. Payment (in whole or part) ---ii. Possession ---iii. Valuable Improvements |
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Contracts Equitable Remedies: RESCISSION
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The original contract is considered voidable and rescinded.
“Good Dog!” (Grounds; Defenses) |
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Contracts Equitable Remedies: Grounds for Rescission
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1. mistake
2. misrepresentation 3. coercion 4. undue influence 5. lack of capacity 6. failure of consideration 7. illegality Note: these all relate to contract formation. If there is no true meeting of the minds, there is no valid contract. |
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Contracts Equitable Remedies: Grounds for Rescission: Mistake
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Mutual mistake of material fact: rescission granted
Mutual mistake of collateral fact (e.g. quality, desirability, fitness for a particular purpose): rescission denied Unilateral mistake: rescission denied (unless non-mistaken party knows or should know of the mistake) |
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Contracts Equitable Remedies: Grounds for Rescission: Misrepresentation
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Rescission granted if plaintiff shows he ACTUALLY RELIED on the misrepresentation.
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Contracts Equitable Remedies: Defenses for Rescission
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1. Unclean hands
2. Laches 3. Plaintiff affirmed contract by suing for damages first Note: Negligence of plaintiff is not a valid defense to rescission. |
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Contracts Equitable Remedies: REFORMATION
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Changes the written agreement to conform with the parties’ original understanding.
“Very Good Dog!!!” (Valid contract; Grounds; Defenses) |
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Contracts Equitable Remedies: Reformation: Valid Contract
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Must be a true meeting of the minds and a mutual understanding.
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Contracts Equitable Remedies: Reformation: Grounds
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1. Mistake
2. Misrepresentation |
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Contracts Equitable Remedies: Reformation: Grounds: Mistake
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Mutual mistake: reformation granted
Unilateral mistake: reformation denied (unless non-mistaken party knows of the mistake—this is fraud or inequitable conduct) |
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Contracts Equitable Remedies: Reformation: Grounds: Misrepresentation
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Reformation granted.
Rewriting reflects expressed intent of the parties. Contracts Equitable Remedies: Reformation: Defenses |
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REMEDIES ESSAY CHECKLIST
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Torts Damages
Torts Legal Restitution Torts Equitable Restitution Injunction Contracts Damages Contracts Restitution Specific Performance Rescission Reformation |
