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124 Cards in this Set

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remedies approach
1) determine substantive area of law and what specific type of problem is at issue
2) make sure p has a case
3) determine which remedies require discussion
order or remedies discussion
1) legal remedies
2) restitutionary remedies
3) equitable remedies
tort legal remedies
1) compensatory damages
2) nominal damages
3) punitive damages
compensatory damages basic concept
based on injury to p
compensatory damages requirements
1) actual causation
2) foreseeability/proximate causation
3) certainty- cannot be too speculative
4) unavoidability (p must take reasonable steps to mitigate damages)
past losses must be
established with more certainty than future losses
future damages BOP
p must show they are more likely to happen than not
economic losses (special damages) and certainty
basic certainty rules apply- calculation must be with sufficient certainty
non-economic losses (general damages) and certainty
basic certainty rules do not apply- jury may award any amount it wishes subject to propert instructions
form of judgment payment
single lump sum payment

discounted to present value

inflation not taken into account
nominal damages basic concept
where p has no actual injury
punitive damages basic concept
punish d
rules of punitive damages
1) p must first be awarded compensatory or nominal damages
2) d's type of fault must be greater than negligence (negligence will not support punitive damages)
3) punitive damages are awarded in an amount relatively proportioned to actual damages (limited to a single digit multiple of actual unless conduct is extreme)
tort legal restitutionary remedies
1) restitutionary damages
2) replevin
3) ejectment
restitutionary damages basic concept
based on benefit to d, calclulated based on value of the benefit
restitutionary damages and compensatory damages
p cannot be awarded both, must elect 1

give p largest sum
punitive damages and restitutionary damages
can be attached as long as underlying COA is tort
replevin
p recovers possession of specific personal property
replevin requirements
1) p has right to possession
2) wrongful withholding by d
timing of replevin
can recover chattel before trial if p posts a bond

d can defeat immediate recovery by posting a redelivery bond (can keep chattel until after trial)
replevin almost always coupled with-
damages (compensatory or restitutionary) for lost use or benefit to d during time of detention
ejectment
p recovers possession of specific real property
ejectment test
1) p has right to possession
2) wrongful withholding by d
ejectment is almost always coupled with-
damages (compensatory or restitutionary) for lost use or benefit to d during time of wrongful withholding)
tort equitable restitutionary remedies
1) constructive trusts
2) equitable liens
constructive trust
imposed on improperly acquired property to which d has title

d serves as TE and must return property to p
equitable lien
imposed on improperly acquired property to which d has title

property will be subject to an immediate court-directed sale, monies go to p

if proceeds are less than FMV of property when taken, deficiency judgment for the difference used against d's other assets
constructive trusts and equitable liens can be used only when-
fact pattern indicates d has title to property
CT and EL rules
1) inadequate legal remedy (can't get damages when d is insolvent or CT property is unique)

2) tracing is allowed (follow $ into bank account)

3) BFP's prevail over P

4) p prevails over unsecured creditors
if property value subsequent to taking goes up
go with CT
if property value subsequent to taking goes down
go with EL
where d's property cannot be traced solely to p's property
only EL is available
permanent injunctive relief issued-
after full trial on the merits
temporary injunction issued-
pending trial on the merits
temporary injunctive relief test
1) establish there is irreparable injury (discuss facts in timeframe context)

2) establish p's likelihood of success (p must establish this probability)
balancing of hardships of irreparable injury
irreparable injury weighed against any hardship defendant will suffer if a temporary injunction is granted
bond requirement
if temporary injunction sought, court should impose a bond requirement on p to reimburse d if injunction injures d and p does not succeed
temporary restraining order
issued pending a hearing to determine whether TI should issue
test for TRO
identical to TI test
tro can be ex parte-
1) notice not req

2) adversarial proceeding not req

if opp to give d notice and chance to appear and contest, good faith effort must be made to do so
tro limited to-
10 days
permanent injunction checklist

i put five bucks down
1) inadequate legal remedy
2) property interest/protectable interest
3) feasibility of enforcement
4) balancing of hardships
5) defenses
tort equitable remedies
temporary injunctive relief
permanent injunctive relief
permanent injunctions

1) inadequate legal remedy alternatives
1) replevin- sheriff unable to recover, d can file redelivery bond

2) ejectment- sheriff can refuse ex. encroaching building

3) money damages- too speculative, tort only threatened not committed, d insolvent, irraparable injury, avoid multiplicity of actions (prior history of litigation between same parties)
permanent injunctions

2) property right/protectable interst
1) traditional rule- equity will grant relief only where protectable property right is involved

2) modern trend- a protectable interst will suffice
permanent injunctions

3) feasibility of enforcement
1) negative injunction- no enforcement problem

2) mandatory injunction (affirmatively perform an act)- may be an enforcment based on difficulty of supervision or concern with effetively ensuring compliance
permanent injunctions- feasibility of enforcement

if act involves application of great taste, skill, or judgment
injunction denied, judge cannot make value judgment
permanent injunction- feasibility of enforcement

a series of acts over a period of time
injunction denied unless p's case is otherwise graet, judge is not a babysitter
permanent injunction- feasibility of enforcement

an out of state act is required
resident d- injunction granted

nonresident d- injuntion denied
permanent injunction

4) balancing of hardships- rules
1) must be gross disparity between detriment and benefit
2) no balancing if d's conduct was willful
3) if you decide to balance, consider awarding p $damages
4) hardship to the public is also taken into account
balancing of hardships defense almost always primary discussion with torts of-
nuisance or trespass to land
permanent injunction

5) defenses
1)unclean hands (available only if p's alleged improper conduct is RELATED to lawsuit)
2) laches (concerned with effect of passage of time)
3) impossibility of d to carry terms of injunction
4) free speech (if defamation or publication branch tort)
laches rules
1) clock starts to run when p knows of the injury
2) delay cuts off the right to relief when it has been BOTH unreasonable and prejudicial to d
if laches applies, consider-
awarding p some money
equity will not enjoin-
crimes (check to see if conduct could be characterized as tort- can get relief it tortious but address crime issue)
who will be bound by an injunction
1) parties
2) EEs and agents acting with notice
3) third persons acting with notice
erroneous injunctions
must be obeyed, then have it modified or dissolved- DONT IGNORE
civil contempt (disobeyance of court order)
to coerce
1) money/fine
2) imprisonment- d can get out of prison by agreeing to comply
criminal contempt (disobeyance of court order)
to punish
1) money/fin
2) imprisonment- cannot get out of prison, remain for set amount of time)

remember constitutional safeguards
there is no civil/criminal contempt for-
non-compliance with amoney judgment

exceptions- alimony, child support
injunctive relief almost always coupled with-
damages for injuries incurred in the time period prior to obtaining the injunction
personal property torts

destroyed property
compensatory damages
personal property torts

damaged property
compensatory damages
personal property torts

dispossession
1) compensatory damages
2) restitutionary damages if d benefits
3) repelvin
4) mandatory injunction if chattel unique and replevin won't work
5) CT/EL if d insolvent and tracing facts involved
6) self-help- reasonable force to recapture
real property torts

simple trespass
1) nominal damages
2) restitutionary damages
3) injunction- avoiding multiplicity of actions
real property torts

destruction/damage of realty
1) compensatory damages
2) injunction
real property torts

dispossession
1) compensatory damages
2) restitutionary damages
3) ejectment- since its available, no injunction
4) CT/EL
real property torts

encroachment
1) compensatory damages
2) injunction- emphasize balancing of hardships
NO RESTITUTION
real property torts

nuisance
1) compensatory damages
2) injunction- emphasize balancing of hardships
NO RESTITUTION
personal injury torts
1) compensatory damages- economic losses/special damages (certainty applies), non-economic losses/general damages (certainty does not apply), lump sum payment (discounted, no inflation)
2) injunction- against prospective intentional tortious conduct only
fraud
1) damages
2) CT/EL
consider analyzing as k case or whether punitive damages should be awarded
contracts legal remedies
compensatory damages
consequential damages
liquidated damages
contracts legal restitutionary remedies
restitutionary damages
replevin
ejectment
contracts equitable restitutionary remedies
CT/EL
contracts equitable remedies
specific performance
rescission
reformation
k compensatory damages requirements
1) causation
2) foreseeability at time of formation
3) certainty
4) unavoidability/mitigation
consequential damages
available for related damages foreseeable at time of formation
k punitive damages
not allowed
if d's conduct willful, try to characterize as tort case
k liquidated damages clause test for validity
1) damages very difficult to ascertain at time of k formation
2) reasonable forecase of what they would be
if k liquidated damages clause valid-
only liquidated amount available, forget actual compensatory
if k liquidated damages clause invalid-
only actual damages available
if k clause provides that one can get either actual or liquidated-
invalid clause- cannot be given a choice
unenforceable k and restitution
1) p can get restitutionary damages for value of benefit of property/money/services received by d
2) if value of services greater than k rate, p can recover amount of value
3) p can get unique property back or can get property back if d is insolvent
breached k and restitution

p as non-breaching party
1) p can get restitutionary damages for property/money/services received by d for value of benefit (value can be greater than k rate)
2) p can get property back if it is unique or d is insolvent
breached k and restitution

p as breaching party
1) traditional view- no recovery of restitutionary damages
2) modern view- recovery allowed

recovery cannot be greater than k rate and is reduced by any damages suffered by d as result of breach
k specific performance checklist

cha-cha is my dance
1) k must be valid
2) conditions of p satisfied
3) inadequate legal remedy
4) mutuality of remedy
5) defenses
k specific performance

1) k is valid
p must be able to show k terms with more certainty and definiteness than would be the case in an action for money damages at law
k specific performance

2) k conditions of p must be satisfied
p must be able to show his k conditions have been fulfilled (already performed, ready and able to perform, excused from performing)
k specific performance

2) k conditions of p must be satisfied

land sale ks- deficiencies fact pattern (seller cannot deliver agreed upon consideration)- seller as p
1) can enforce k if defect is minor
2) cannot enforce k if defect is major UNLESS seller can cure before or at closing
k specific performance

2) k conditions of p must be satisfied

land sale ks- deficiencies fact pattern (seller cannot deliver agreed upon consideration)- buyer as p
1) can enforce even if defect is major
2) cannot enforce if defect very major
k specific performance

2) k conditions of p must be satisfied

land sale ks- deficiencies fact pattern (seller cannot deliver agreed upon consideration)- if SP should be granted, MUST include-
sentence noting that the court will lower the purchase price to take into account this defect in consideration ABATEMENT IN THE PURCHASE PRICE
k specific performance

2) k conditions of p must be satisfied

land sale ks- time of the essence clause (buyer does not meet k condition of timely performance)- fact line-up
1) land sale k
2) k will contain express time of the essence clause
3) clause will contain forfeiture provision
4) partial performance now potentially subject to forfeiture
5) buyer makes late payment
6) buyer wants SP
k specific performance

2) k conditions of p must be satisfied

land sale ks- time of the essence clause (buyer does not meet k condition of timely performance)- factors court looks at to avoid harsh result of forfeiture
1) loss to seller is small
2) tardiness is de minimis
3) waiver if seller accepted late payments in past
4) buyer suffers undue hardship
k specific performance

2) k conditions of p must be satisfied

land sale ks- time of the essence clause (buyer does not meet k condition of timely performance)- should almost always-
award SP to avoid forfeiture

answer should not that under the modern trend courts would give p rstitutionary relief if SP were not granted
k specific performance

3) inadequate legal remedy alternative
money damages inadequate because
1) damages too speculative
2) d is insolvent
3) multiple suits necessary
4) thing bargained for is unique
k specific performance

unique personal property
1) one of a kind, very rare
2) personal significance to buyer
3) circumstances make chattel unique

uniqueness tested AT TIME OF LITIGATION not k formation
k specific performance

liquidated damages clause does not-
make money damages adequate, SP still available

EXCEPTION where clause provides it will be the only remedy
k specific performance

4) mutuality of remedy- fact pattern
p should not be able to enforce this k against be because i could not enforce it against him
k specific performance

4) mutuality of remedy- rule
court will reject mutuality argument if it feels secure p can/will perform

grant SP and provide for SIMULTANEOUS PERFORMANCE
k specific performance

5) defenses- equitable defenses
1) unclean hands
2) laches
3) unconscionability- tested at time of k formation
k specific performance

5) defenses-k defenses
1) mistake
2) misrepresentation
3) SOF (but watch for oral land ks- if part performance in reliance of k)
k specific performance

5) defenses- k defenses-SOF valuable part performance for oral land ks
any 2 of the top 3 taken together
1) payment (whole or part)
2) possession
3) valuable improvements
4) valuable services (modern trend)
k specific performance

equitable conversion- land sale ks
if land sale k specifically enforceable, equitable conversaion occurred upon execution and property of B and S are SWITCHED-

B has real property interest or specifically enforceable right to the land, S has personal property interest or specifically enforceable right to the money
k specific performance

equitable conversion- on death
before closing, seller dies- only has right to personal property interest of purchase price
k specific performance

equitable conversion- damage and destruction
majority rule- risk on b
modern trend- risk on s
personal service k's
not specifically enforceable
1) enforcement
2) involuntary servitude
covenenants not to compete test of enforceability
1) covenant must protect legitimate interest of person in whose favor it runs- services must be unique
2) covenant must be reasonable in BOTH geographical and durational scope
k rescission
original contract considered voidable and rescinded
rescission analysis

good dog
1) grounds
2) defenses
rescission analysis

1) grounds
1) general grounds- formation failures (mistake, misrepresentation, coercion, undue influence, lack of capacity, failure of consideration, illegality)
2) mutual mistake (mutual material- granted, mutual collateral- denied)
3) unilateral mistake- rescission denied except when nonmistaken party knows/should know of mistake
modern trend- if mistaken party would suffer undue hardship no rescission)
4) misrepresentations- granted if p shows actually relied upon misrepresentation
rescission analysis

2) defenses
1) unlean hands
2) laches

(negligence of p not good defense)
rescission analysis

election of remedies
if p sues for damages first, rescission not allowed

if p sues for rescission first, damages are allowed
rescission analysis

availability of restitution
if p who is entitled to rescission has previously rendered performance on the k, he can get compensated for it or get property back via restitution
rescission analysis

legal rescission
1) p gives notice and tenders back any consideration received
2) p sues for restitution for anything given to d
reformation
changes written agreement to conform with parties' orgiinal understanding
reformation analysis

very good dog
1) valid k
2) grounds
3) defenses
reformation analysis

2) grounds for reformation
1) mutual mistake- granted
2) unilateral mistake- denied except when nonmistaken party KNOWS of mistake only
3) misrepresentation- granted for both innocent and intentional misrep to reflect expressed intent of parties
reformation analysis

3) defenses
1) unclean hands
2) laches
reformation analysis

3) defenses- not valid defenses
1) negligence of p
2) SOF
3) PER
reformation and subsequent BFP
reformation not allowed where it would adversely affect the rights of a subsequent BFP
personal property sale k's
1) compensatory damages for s's breach (when does not convey or delivers damaged goods) and b's breach (when does not pay)
2) restitution esp for unenforceable/breached ks
3) specific performance when property is unique
4) rescission
5) reformation
real property sale k's
1) compensatory damages for when s breaches (does not convey) or b breaches (does not pay)
2) restitution esp for unenforceable/breached ks
3) specific performance (both b and s can get sp)- watch for time of essence, equitable conversion
4) rescission
5) reformation
construction k's
1) compensatory damages for when owner breaches (does not pay) and builder breaches (non/defective completion)
2) restitution only for builder for work done unless owner pre-paid
3) SP only for owner but difficult because of enforcement
personal service k's
1) compensatory damages for ER breach (wrongfully terminates) and EE breach (wrongfully quits)
2) restitution only for EE for services rendered unless prepaid
3) specific performance not allowed for E k, is allowed for valid covenant not to compete