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70 Cards in this Set
- Front
- Back
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What are the different TORT remedies?
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1. Legal remedies - Damages
2. Restitutionary Remedies - Legal - Restitution, Replevin, Ejectment 3. Equitable Remedies - Injunctive Relief |
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What are the types of legal remedies - damages - in tort?
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1. Compensatory
2. Nominal 3. Punitive |
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What are the elements of compensatory damages?
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P is entitled to compensatory damages to put him in the position he would have been had this wrong not occurred.
1. Causation - actual cause 2. Forseeability - prosimate cause 3. Certainty - damages cannot be too speculative 4. Unavoidability |
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What is the all or nothing rule?
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In proving future damages - P must show that they are more likely to happen than not (more than 50% chance) or P gets nothing
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What are the damages possible in personal injury torts?
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1. Economic losses (special damages - medical expenses; lost earnings) - P must show with certainty
2. P's noneconomic losses (general damages - pain / suffering permanent disfigurement) - no certainty required 3. Award must be LUMP SUM |
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What are nominal damages?
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Awarded where P has no actual injury - just establish/vindicate P's rights
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What are punitive damages?
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Awarded to punish D
P must first have been awarded compensatory/nominal D's fault is greater than negligence Punitives must be relatively proportional to actual damnages - S.Ct - limit to single digit multiple unless conduct is extreme |
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What are legal restitutionary damages?
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Calculated by teh value of the benefit to D
Can get punitives as well but only in tort |
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If P is able to get both restitutionary and compensatory, what do you do?
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Cannot get both - give whichever will give him the most money
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What is replevin?
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P recovers possession of the specific personal property
Two part test - (1) P has right to possession; (2) Wrongful withholding by D Timing - P can recover before trial but P must post bond D can defeat P's recovery by posting re-delivery bond Sheriff recovers the property Should always also award damages |
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What is ejectment?
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P recovers possesion of specific REAL PROPERTY
Test - P has right to possession; Wrongful withholding by D Can only get ejectment where D has possession (adverse possessor/holdover D) Sheriff ejects Always coupled with damages |
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What is a constructive trust?
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D improperly acquired TITLE to the property
D serves as trustee and gives property to P Use when property value of the property after the taking goes UP |
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What is an equitable lien?
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D improperly acquired TITLE to the property
Property subject to immediate court-directed sale; P gets money Use when property value goes DOWN or when you can't trace |
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What is a deficiency judgment?
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In an equitable lien - if the proceeds of the sale are less than the fair market value of the property when taken, then can get deficiency judgment against D's other assets
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What are the four rules for constructive trusts and equitable liens?
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1. There is an iadequate legal remedy
2. TRACING - D sold property and put money in an account; can trace into the account 3. BFPs prevail over D - but can trace 4. P prevails over unsecured creditors (unless P enforcing deficiency judgment) |
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What are the elements for a temporary injunction?
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1. Irreparable injury - to P while waiting for full trial; weighed against hardship D will suffer
2. P's likelihood of success If injunction granted - Ct should impose BOND requirement on P to reimburse D if P does not suceed |
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What are the requirements for temporary restraining order?
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ISsued pending a hearing to determine whether temporary injunciton will issue
1. Can be ex parte 2. Notice is not required 3. Limited to 10 days |
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Five Part Checklist for Permanent Injunction - I Put Five Bucks Down
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1. Inadequate LEgal Remedy
2. Property / Personal Right 3. Feasiblity of Enforcement 4. Balance the hardships 4. Defenses |
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When is there an inadequate legal remedey sufficient for a permanent injunction?
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Replevin - sheriff can't recover; D files re-delivery bond
Ejectment - sheriff won't act (won't rip down house) Damages - too speculative; tort only threatened; D insolvent; irreparable injury (unique property); multiplicity of actions |
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How does court determine feasibilty of enforcement for a permanent injunction?
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1. Negative Injunction - no enforcement problem
2. Mandatory injunction - issue if (1) supervision is difficult or (2) there is concern with effectively assuring compliance - Application of great taste, skill or jugdment - Series of acts over a period of time - Out of state act required - if resident D, injunction granted; not if non-resident D |
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When will a court balance the hardships?
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Ct looks at if injunction granted - P's benefit v. D's hardship
If gross disparity - possible no injunction but P can get money damages Even if gross disparity - no balancing if D's conduct was willful Ct wil consider hardship to the public (esp nuisance) |
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What are the defenses to permanent injunction?
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1. Unclean Hands - P cannot be guilty of unfair dealing re: this transaction
2. Laches - unreasonable delay by P in initiating lawsuit which prejudiced D - Clock runs when P knows of injury - P can still get money damages 3. Impossibility - for D to carry out terms of injunction 4. Free speech - defamation or invasion of privacy |
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Who is bound by an injunction?
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Parties
Employees/agents with notice Third parties with notice |
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What are the contract remedies?
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1. Legal Remedies - Damages
2. Restitutionary Remedies - legal - Restitutionary Damages 3. Equitable Remedies - Specific performance, recission, reformation |
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What are Legal Damages under contract?
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1. Compensatory Damages - consequential damages
2. Nominal 3. Liquidated Damages |
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When can you get consequential damages?
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Available for related damages that were foreseeable at teh time of formation
- Ex - damage to reputation |
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Can you ever get punitives under contract?
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NO - unless you characterize D's conduct as willful and you can make it a tort
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When are liquidated damages valid?
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1. Damages are very difficult to ascertain at the time of contract formation
2. Clause was a reasonable forecast of what damages would be If clause provides for either liquidated or actual damages - clause is invalid |
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When can you get restitutionary damages under contract?
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Contract fails after P performed (partial or complete)
1. Contract is unenforceable 2. Contract is breached |
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If contract is unenforceable, what is the measure of restituionary damages?
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P can get restitution for property /money given to or services rendered for D for the VALUE OF THE BENEFIT
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If contract is breached, what are the restititonary damages?
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1. P is non-breaching party - can get restitution for the value of the benefit (property /money given or services rendered - can be greater than K)
2. P is breaching party - Trad - no restitution - Modern - restitution but not greater than contract rate and must be reduced by any damages suffered by D |
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What is the checklist for specific performance - I'm Doing Fine Mom and Dad
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FIRST MUST SHOW VALID CONTRACT
1. Inadequate Legal Remedy 2. Definite and Certain Terms 3. Feasibilty of Enforcement 4. Mutuality 5. Defenses |
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How certain and definite do the terms need to be for specific performance?
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P must show contract terms with MORE certainty and definiteness than for money damages
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When are the P's contract conditions satisfied to get specific performance?
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P must show his contract conditions have been fulfilled - already performed; ready/able; excused
Two fact patterns (land) 1. Deficiencies - seller cannot deliver the agreed upon consideration 2. Time of the essence clause - buyer does notn meet contract conditions of timely performance |
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If the seller cannot deliver the agreed upon consideration - what remedy (deficiences)?
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1. SELLER IS P - can enforce K if defect is minor
2. BUYER IS P - can enforce K even if defect is very major but will get ABATEMENT |
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When can P get abatement?
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If specific performance is granted where there is a defect, court will lower the purchase price to take this into account
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If the buyer does not meet the contract condition of timely performance (time of the essence), when can he get specific performance?
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Even if there is a forfeiture clause - equity abhors forfeitures.
Ct will try to avoid - factors - loss to seller is small; tardiness de minimis; waiver (seller accepted late payments before); buyer would suffer undue hardship |
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When is there an inadequate legal remedy such that ct will award specific performance?
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Money damages are no good - speculative; D insovlent; multiple suits; UNIQUENESS of thing
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When will the uniqueness of the thing bargained for support specific performance?
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1. Land is ALWAYS unique
2. Special Seller's rule 3. Personal property is not unique - unless one of a kind; personal significance to buyer; circumstances make chattel unique |
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What is the special sellers rule?
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Sellers of land can get SP even though all tehy have coming is money
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If there are liqudated damages, then can you still get specific performance?
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YES - does not make money damages adequate
UNLESS - clause provides it is the only remedy |
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What is mutuality of remedy as rquired under specific performance?
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Trad rule - P not granted SP unless could show that D could have obtained such relief against P had P breached
Modern Rule - Mutuality of performance |
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What are the defenses to specific performance?
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Equitable
1. Unclean Hands 2. Laches 3. Unconscionability - at contract formation Contract Defenses - mistake misrepresenation S/F |
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When will statute of frauds not be a defense to specific performance?
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1. Contract for land and contract is ORAL
2. If one has rendered valuable part performance, in reliance on the contract, S/F does not apply - Part performance - possession, payment, improvements (2 of 3) |
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What is doctrine of equitable conversion
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1. Equitable conversion occurs on execution of the land sale contract
2. Buyer ahs real property interest and seller has personal property interest |
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What is the effect of equitable conversion on death of one of the parties?
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If seller dies and will gives real property to E and personal property to R, then E gets nothing.
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What is the effect of equitable conversion on risk of loss?
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After contract is entered into - property is damaged or destroyed
1. Majority - risk of loss on buyer 2. Minority - risk of loss on seller |
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Can you get specific performance for personal services contract?
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NO
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Can you get specific performance of convenant not to compete?
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Two part test
1. Covenant must protect a legit interest of the person in whose favor it runs - the services must be unique 2. Covenant must be reasonable in both geopgrahical and durational scope |
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When can a party get RECISSION of a contract?
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1. Determine if there are grounds for recission
- Mistake - must be mutual and as to material fact; if unilateral then recission denied (unless palpable) - Misrep - granted if P actually relied 2. Determine if there are valid defenses - laches / unclean hands (not negligence) |
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What is a palpable unilateral mistake that will allow recission?
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If non-mistaken party knows or should have known about the the mistake (developer should know about the very low bid)
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If P wants both recission and damages - what is the order to sue?
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1. Recission
2. Damages Can sue for both at once but must elect preferred remedy before judgment |
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Can P get restitution if the contract is recinded?
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If P has previously tendered performance on the contract, then can get compensation or property back via restitution.
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What is legal recission?
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PArties do it themselves - P gives notice and tenders back any consideration; P sues for restitution for anyting given to D
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What are the requirements for REFORMATION?
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Reformation changes the agreement to conform w/parties original understanding
1. Determine if there is a valid K 2. Determine if there are grounds for reformation - Mistake - granted if mutual; denied if unilateral unless other party KNEW of the mistake - Misrep - reformation granted always 2. Determin if there are valid defenses - unclean hands, laches - nondefenses - s/f; parol evidence - no reformation if adverse effect on rights of subsequent BFP |
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Personal Property Tort
Destroyed Property - what are remedies? (Conversion) |
Compensatory damages - causation, forseeability, certainty, avoidability (mitigation)
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Personal Property Torts
Damaged Property - what are remedies? (Tresspass to Chattel) |
Compensatory damages
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Personal Property Torts
Dispossession - available remedies? |
1. Compsenatory Damages
2. Restitutionary Damages - if D benefits 3. Replevin - property returned 4. Mandatory injunction - If chattel UNIQUE and damages and repelvin won't work 5. Constructive trusts / Equitable Liens - esp if D is insolvent and/or tracing fees involved 6. Self-Help - reasonable force to recapture property |
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Real Property Torts
Simple Trespass - available remedies |
1. Nominal Damages
2. Restitutionary Damages 3. Injunction - avoid multiplicity of actions |
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Real Property Torts
Destruction / Damage of Realty - available remedies |
1. Compensatory Damages
2. Injunction |
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Real Property Torts
Dispossession - available remedies |
1. Compensatory Damages
2. Restitutionary Damages 3. Ejectment - b/c available, no injunction 4. Constructive trust / equitable lien |
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Real Property Torts
Encroachment - available remedies |
1. Compensatory Damages
2. Injunction - probably emphasize balancing of hardships **No restitution (replevin; ejectment; equitable lien** |
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Real Property Torts
Nuisance - Available Remedies |
1. Compensatory Damages
2. Injunction - balancing hardships |
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Personal Injury Torts - available remedies
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1. Compensatory Damages
- Economic losses / special damages (lost wages) - CERTAINTY - Non-economic losses / general damages (pain and suffering) - NO CERTAINTY NEEDED - Lump Sum Payment discounted to present value; inflation is not taken into accout 2. Injunction - only against prospective intentional tortious conduct |
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FRAUD - available remedies
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1. Damages
2. Constructive Trusts / Equitable Liens **Always consider - if should be analyzed as contracts case and whether puntives should be awarded |
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What is the threshold question for analysis for contract compensatory damages?
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1. Which PARTY to the contract committed breach?
2. HOW did they do it? |
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Personal Property Sale Contracts - available remedies
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1. Compensatory Damages
- Seller's breach (does not convey; delivers damaged goods) - Buyer's breach (does not pay) 2. Restitution - party partly performed - Unenforceable K - Breached K - who breached 3. Specific Performance - property not unique; exceptions |
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Real Property Sale Contracts - availalbe remedies
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1. Compensatory Damages
- Sellers Breach - does not convey - Buyer's Breach - Does not pay 2. Resitution - Unenforceable K - Breached K 3. Specific Performance - Land is unique - Both buyer and seller can get SP - Deficiencies/Time of Essence - Equitable conversion 4. Recission 5. Reformation |
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Construction Contracts - available remedies
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1. Compensatory Damages
- Owner's Breach (does not pay) - Builder's Breach (non - completion; defective completion) 2. Restitution - only builder for work done (unless owner pre-paid) 3. Specific performance - only owner - but very difficult b/c of enforcement problems |
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Personal Services Contracts - available remedies
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1. Compsensatory Damages
- Employer's breach (wrongfully terminates) - Employee's breach (wrongfully quits) 2. Restitution - only employee for services rendered (unless employer pre-paid) 3. Specific performance - generally NO unless valid covenant not to compete |
