Remedies

Front 1

What are the legal restitutionary remedies?

Back 1

1. Restitutionary damages
2. replevin
3. ejectment

Front 2

What are the equitable restitutionary damages?

Back 2

1. constructive trusts
2. equitable liens

Front 3

What are all of the possible equitable remedies for contracts? Which of those only apply to torts?

Back 3

1. specific performance
2. rescission*
3. reformation*

* only applies to contracts

Front 4

What are all of the legal remedies?

What's the general name for legal remedies?

Back 4

1. compensatory (can include consequential damages)
2. nominal
3. punitive

"damages"

Front 5

Definition of "damages"

Back 5

"Defendant is ordered to pay money to plaintiff."

Front 6

What to say about Compensatory damages.

Back 6

Compensatory damages are based on injury to the plaintiff.

They put the injured party in the position she would have been in had the injury not occurred.

The damages cannot be too speculative - they must be proven with certainty.

The plaintiff must take reasonable steps to mitigate the damages.

This must be a single lump sum payment discounted to present value.

Front 7

How to handle certainty for past losses?

For future losses?

For economic losses?

For non-economic losses?

Back 7

Past losses: helps if there is a historical record to provide certainty

Future losses: "all or nothing rule" - P must show that future damages are more likely than not

economic losses: calculation must be with SUFFICIENT certainty

non-economic losses: basic certainty rules do not apply. jury may award any amount i wishes subject to proper instruction.

Front 8

What are nominal damages?

Back 8

Nominal damages are awarded where P has no actual injury. They serve to establish or vindicate the P's rights.

Front 9

What to know / say about punitive damages.

Back 9

1. these are awarded to punish the D.

2. Can only get them if first awarded compensatory, nominal, or, where underlying cause of action is tort, restitutinary damages.

3. D's fault must have been greater than negligence.

4. Punitive damages must be releatively proportionate to actual damages (single digit multiplier).

Front 10

What to say about restitutionary remedies?

Back 10

These remedies are based on the theory that the Defendant should not be unjustly enriched.

Front 11

What is replevin?

What must the plaintiff establish for replevin?

Is there anything else?

Back 11

1. P recovers possession of specific personal property.

2. Replevin requires a 2 part test. Establish that:
a. P has a right to posession.
b. there is a wrongful withholding by D.

3. P can recover the chattel BEFORE trial, but P must post a BOND

Go for damages too (compensatory or restitutionary) for lost use or benefit to D

Front 12

What is ejectment?

Is there anything else?

Back 12

1. Plaintiff recovers possession of specific real property.

2. Replevin requires a 2 part test. Establish that:
a. P has a right to posession.
b. there is a wrongful withholding by D.

3. Go for damages too (compensatory or restitutionary) for lost use or benefit to D during time of wrongful withholding.

Front 13

What do you write for a constructive trust?

Back 13

Imposed on improperly acquired property to which D has TITLE.

D serves as "TRUSTEE" and must return property to P.

Front 14

What do you write for an equitable lien?

Back 14

Imposed on improperly acquired property to which D has TITLE.

Property will be subject to an immediate court-directed SALE.

Monies received go to the P.

If the proceeds of the sale are less tha the FMV of the property when it was taken, a DEFICIENCY JUDGMENT will issue for the difference and can be used against D's other assets.

Front 15

When is a constructive trust / equitable lien appropriate?

Back 15

Where the legal remedy is inadequate.

This can be b/c D is insolvent OR property is unique (for constructive trusts).

Front 16

What determines appropriateness of equitable lien v. constructive trust?

Back 16

1. CHANGE IN PRICE of property after the taking
2. if property is UNIQUE --> constructive trust
3. if D's property cannot be traced solely to P's property --> equitable lien only

Front 17

What is necessary for a temporary injunctive relief?

Back 17

1. There is irreperable injury (discuss facts in time-frame context)

2. The P has a likelihood of sucess on the merits (discuss probability)

3. court should impose bond requirement on P to reimburse D if injunction injures D or P doesn't succeed.

Front 18

Checklist for Permanent Injunction

Back 18

"I Put Five Bucks Down"

Inadequate legal remedy alternative

Property Right / Protectable Interest req.

Feasability of Enforcement

Balancing of Hardships

Defenses

Front 19

Why would Replevin be an inadequate legal remedy?

Back 19

1. sheriff may not be able to recover (find or identify chattel)

2. D can file a redelivery bond

Front 20

Why would ejectment be inadequate?

Back 20

Sheriff may refuse to act (wouldn't rip down part of house encroaching on P's land)

Front 21

Why would money damages be inadequate?

Back 21

1. too SPECULATIVE
2. tort is only THREATENED, not yet committed
3. D is INSOLVENT
4. IRREPERABLE injury
5. avoiding MULTIPLICITY of actions (prior his tory of litigation b/w parties related to same action)

Front 22

What to say about feasability of injunction?

Back 22

1. negative injunction: no enforcement problems
2. mandatory injunction: may be an enforcement problem based on (i) difficulty of supervision or (ii) concern with effectively ensuring compliance

Front 23

How to balance hardships for injunctions?

Back 23

1. compare P's benefit against D's hardship if relief granted; must be a gross disparity b/w detriment and benefit

2. no balancing where D's conduct is wilfll

3. where hardships balanced, probably award P money damages

4. discuss public's hardship

Front 24

What are injunction defenses?

Back 24

1. unclean hands: "Bad guy" plaintiff
2. Laches
3. impossibility
4. free speech

Front 25

What is laches?

Back 25

Laches is concerned with the effect of the passage of time.

The clock starts to run for the purposes of a laches defense when P knows of the injury.

When P's response to D's activity represents an unreasonable and prejudicial delay to the D.

Front 26

What to say about consequential damages?

Back 26

Consequential damages are available for RELATED damagess FORESEEABLE at the time of FORMATION.

Front 27

What to do in K case where D's conduct is willful?

Back 27

try to characterize D's conduct as a tort.

Front 28

What are the requirements for a liquidated damages clause?

Back 28

1. damages are VERY DIFFICULT to ascertain at the time of K FORMATION.

2. This was a REASONABLE FORECAST of what the damages would be.

Front 29

Where P is breaching party, can P get restitutionary damages?

Back 29

Majority / Traditional: No recvoery

Modern: Recovery allowed, but cannot be greater than K rate and is reduced by any damages suffered by D as a result of breach

Front 30

In land of sale K where seller cannot deliver the agreed upon consideration, can the SELLER as the plaintiff enforce a K defect?

Back 30

If minor, yes.

If major, no, unless the seller can cure the defect before or at closing.

Front 31

In land of sale K where seller cannot deliver the agreed upon consideration, can the BUYER as the plaintiff enforce a K defect?

Back 31

If major yes.

If very major, no.

Front 32

What else must you say where there is a land sale K, the seller cannot deliver the agreed upon consideration, and you find that despite a defect specific performance should be granted?

Back 32

State:

"The court will lower the purchase price to take into acccount this defect in consideration. This is an abatement of the purchase price."

Front 33

What is the checklist for Specific Performance under K?

Back 33

"Cha Cha is my dance."

Contract must be valid

Conditions of P satisifed

Inadequate legal remedy

Mutuality of Remedy

Defenses