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70 Cards in this Set

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What are the different TORT remedies?
1. Legal remedies - Damages
2. Restitutionary Remedies
- Legal - Restitution, Replevin, Ejectment
3. Equitable Remedies - Injunctive Relief
What are the types of legal remedies - damages - in tort?
1. Compensatory
2. Nominal
3. Punitive
What are the elements of compensatory damages?
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
What is the all or nothing rule?
In proving future damages - P must show that they are more likely to happen than not (more than 50% chance) or P gets nothing
What are the damages possible in personal injury torts?
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
What are nominal damages?
Awarded where P has no actual injury - just establish/vindicate P's rights
What are punitive damages?
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
What are legal restitutionary damages?
Calculated by teh value of the benefit to D
Can get punitives as well but only in tort
If P is able to get both restitutionary and compensatory, what do you do?
Cannot get both - give whichever will give him the most money
What is replevin?
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
What is ejectment?
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
What is a constructive trust?
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
What is an equitable lien?
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
What is a deficiency judgment?
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
What are the four rules for constructive trusts and equitable liens?
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)
What are the elements for a temporary injunction?
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
What are the requirements for temporary restraining order?
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
Five Part Checklist for Permanent Injunction - I Put Five Bucks Down
1. Inadequate LEgal Remedy
2. Property / Personal Right
3. Feasiblity of Enforcement
4. Balance the hardships
4. Defenses
When is there an inadequate legal remedey sufficient for a permanent injunction?
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
How does court determine feasibilty of enforcement for a permanent injunction?
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
When will a court balance the hardships?
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)
What are the defenses to permanent injunction?
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
Who is bound by an injunction?
Parties
Employees/agents with notice
Third parties with notice
What are the contract remedies?
1. Legal Remedies - Damages
2. Restitutionary Remedies - legal - Restitutionary Damages
3. Equitable Remedies - Specific performance, recission, reformation
What are Legal Damages under contract?
1. Compensatory Damages - consequential damages
2. Nominal
3. Liquidated Damages
When can you get consequential damages?
Available for related damages that were foreseeable at teh time of formation
- Ex - damage to reputation
Can you ever get punitives under contract?
NO - unless you characterize D's conduct as willful and you can make it a tort
When are liquidated damages valid?
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
When can you get restitutionary damages under contract?
Contract fails after P performed (partial or complete)
1. Contract is unenforceable
2. Contract is breached
If contract is unenforceable, what is the measure of restituionary damages?
P can get restitution for property /money given to or services rendered for D for the VALUE OF THE BENEFIT
If contract is breached, what are the restititonary damages?
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
What is the checklist for specific performance - I'm Doing Fine Mom and Dad
FIRST MUST SHOW VALID CONTRACT
1. Inadequate Legal Remedy
2. Definite and Certain Terms
3. Feasibilty of Enforcement
4. Mutuality
5. Defenses
How certain and definite do the terms need to be for specific performance?
P must show contract terms with MORE certainty and definiteness than for money damages
When are the P's contract conditions satisfied to get specific performance?
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
If the seller cannot deliver the agreed upon consideration - what remedy (deficiences)?
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
When can P get abatement?
If specific performance is granted where there is a defect, court will lower the purchase price to take this into account
If the buyer does not meet the contract condition of timely performance (time of the essence), when can he get specific performance?
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
When is there an inadequate legal remedy such that ct will award specific performance?
Money damages are no good - speculative; D insovlent; multiple suits; UNIQUENESS of thing
When will the uniqueness of the thing bargained for support specific performance?
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
What is the special sellers rule?
Sellers of land can get SP even though all tehy have coming is money
If there are liqudated damages, then can you still get specific performance?
YES - does not make money damages adequate
UNLESS - clause provides it is the only remedy
What is mutuality of remedy as rquired under specific performance?
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
What are the defenses to specific performance?
Equitable
1. Unclean Hands
2. Laches
3. Unconscionability - at contract formation
Contract Defenses - mistake misrepresenation S/F
When will statute of frauds not be a defense to specific performance?
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)
What is doctrine of equitable conversion
1. Equitable conversion occurs on execution of the land sale contract
2. Buyer ahs real property interest and seller has personal property interest
What is the effect of equitable conversion on death of one of the parties?
If seller dies and will gives real property to E and personal property to R, then E gets nothing.
What is the effect of equitable conversion on risk of loss?
After contract is entered into - property is damaged or destroyed
1. Majority - risk of loss on buyer
2. Minority - risk of loss on seller
Can you get specific performance for personal services contract?
NO
Can you get specific performance of convenant not to compete?
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
When can a party get RECISSION of a contract?
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)
What is a palpable unilateral mistake that will allow recission?
If non-mistaken party knows or should have known about the the mistake (developer should know about the very low bid)
If P wants both recission and damages - what is the order to sue?
1. Recission
2. Damages
Can sue for both at once but must elect preferred remedy before judgment
Can P get restitution if the contract is recinded?
If P has previously tendered performance on the contract, then can get compensation or property back via restitution.
What is legal recission?
PArties do it themselves - P gives notice and tenders back any consideration; P sues for restitution for anyting given to D
What are the requirements for REFORMATION?
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
Personal Property Tort
Destroyed Property - what are remedies?
(Conversion)
Compensatory damages - causation, forseeability, certainty, avoidability (mitigation)
Personal Property Torts
Damaged Property - what are remedies?
(Tresspass to Chattel)
Compensatory damages
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
Real Property Torts
Simple Trespass - available remedies
1. Nominal Damages
2. Restitutionary Damages
3. Injunction - avoid multiplicity of actions
Real Property Torts
Destruction / Damage of Realty - available remedies
1. Compensatory Damages
2. Injunction
Real Property Torts
Dispossession - available remedies
1. Compensatory Damages
2. Restitutionary Damages
3. Ejectment - b/c available, no injunction
4. Constructive trust / equitable lien
Real Property Torts
Encroachment - available remedies
1. Compensatory Damages
2. Injunction - probably emphasize balancing of hardships
**No restitution (replevin; ejectment; equitable lien**
Real Property Torts
Nuisance - Available Remedies
1. Compensatory Damages
2. Injunction - balancing hardships
Personal Injury Torts - available remedies
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
FRAUD - available remedies
1. Damages
2. Constructive Trusts / Equitable Liens
**Always consider - if should be analyzed as contracts case and whether puntives should be awarded
What is the threshold question for analysis for contract compensatory damages?
1. Which PARTY to the contract committed breach?
2. HOW did they do it?
Personal Property Sale Contracts - available remedies
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
Real Property Sale Contracts - availalbe remedies
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
Construction Contracts - available remedies
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
Personal Services Contracts - available remedies
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