Remedies

Front 1

TORT DAMAGES

Back 1

Damages are a legal remedy awarded to make P whole.

Front 2

COMPENSATORY DAMAGES

Back 2

Compensatory damages are awarded to compensate P for injury or loss. Damages must be caused by tortious action, foreseeable at the time of tort, be certain (not overly speculative), and unavoidable. P has a duty to mitigate damages.

Front 3

PURE ECONOMIC LOSS

Back 3

Pure economic loss is not recoverable for most torts, except for intentional interference with business relations.

Front 4

NOMINAL DAMAGES

Back 4

Nominal damages are available in both tort and contract. They are awarded where P's rights have been violated, but P has sustained no loss.

Front 5

PUNITIVE DAMAGES

Back 5

Punitive damages are awarded to punish D for willfull and wanton tortious conduct - more than negligence. They are not available in contract.

Front 6

MONEY RESTITUTION

Back 6

Where D has been unjustly enriched, court may award damages based on value of the benefit to D.

P cannot get both compensatory damages and money restitution. He must make an election of remedies.

Front 7

REPLEVIN

Back 7

Restitutionary remedy available in torts or contract.

P may recover possession of specific personal property wrongfully withheld by D. P may also be entitled to damages for lost use during wrongful withholding.

P may not recover from a BFP.

Front 8

EJECTMENT

Back 8

Restitutionary remedy available in tort and contract.

P may recover possession of specific real property wrongfully withheld by D. It is only available against D who has possession. P may also be entitled to damages for loss of use during wrongful withholding.

Front 9

INADEQUATE LEGAL REMEDIES

Back 9

Equitable remedies only available when legal remedies are inadequate.

(1) Money damages are too speculative to calculate w/certainty.

(2) D is insolvent.

(3) Replevin is unavailable b/c property has been sold to BFP.

(4) Property is unique so money damages inadequate to compensate for loss. Real property is always unique. Personal property is unique if it is one-of-a-kind, very rare, or of special personal significance.

Front 10

CONSTRUCTIVE TRUST

Back 10

Compel D to transfer title to unjustly retained property to P.

Inadequate legal remedy.

Property can be traced. P receives benefit of any increase in value.

Property must be solely traceable.

Lowest Intermediate Balance Rule - P is entitled to the lowest balance recorded after funds commingled.

Cannot recover from BFP.

Front 11

EQUITABLE LIEN

Back 11

An equitable lien is similar to constructive trust but property acts as collateral for money owed. Same rules as constructive trust except:

P does not receive benefit of increase in value.

OK if not solely traceable.

Cannot recover from BFP.

Front 12

PRELIMINARY INJUNCTION

Back 12

Available in both tort and contract.

Preserve the status quo pending full trial on the merits.

(1) Irreparable harm will occur in its absence.

(2) Likelihood of success on the merits.

(3) Balancing of hardships in favor of plaintiff. A large disparity in hardships weighs in favor of impacted party. Willful misconduct weighs heavily against wrongdoing.

(4) No defenses available.

Front 13

TEMPORARY RESTRAINING ORDER

Back 13

Preserve status quo for short period pending further litigation regarding preliminary injunction.

Same elements as preliminary injunction except lack of available defenses.

Front 14

PERMANENT INJUNCTION

Back 14

Where a court orders a party to perform or stop performing an act. P must meet five-part test (I Pray For Big Desserts):

(1) Inadequate legal remedy

(2) Protectable interest

(3) Feasibility of enforcement. Injunction cannot be difficult for court to enforce due to difficulty of supervision, concern with ensuring effective compliance, or length of duration.

(4) Balancing of hardships in favor of P.

(5) no Defenses available.

Front 15

UNCLEAN HANDS

Back 15

P is guilty of misconduct related to the lawsuit.

Front 16

LACHES

Back 16

Unreasonable lapse of time between

When P learns about the injury and when P files action

Causes prejudice to D.

Front 17

PURCHASE MONEY RESULTING TRUST

Back 17

Equitable remedy implied by law to prevent unjust enrichment.

Sale of property holds legal title (trustee) but consideration supplied by another party (beneficiary).

Consideration must be supplied at or before time trustee takes title.

Not presumed where parties are closely related or arrangement involves unlawful purpose.

Front 18

CONTRACT DAMAGES

Back 18

Legal damages are applicable where parties have a valid K, D is in breach and P has suffered damage and seeks money to compensate for loss.

Damages must be definite and certain, reasonable and foreseeable, and caused by breach.

Liquidated - Stipulated where actual damages difficult to calculate.

Consequential - Losses foreseeable at time of K

Reliance - Restore P to position, if K not been made.

Front 19

EXPECTATION (COMPENSATORY) DAMAGES

Back 19

Expectation damages compensate P for the value of the benefit P expected to receive from K.

What did P bargain for?

Determine the value of K to P had K been properly performed.

Front 20

CONSEQUENTIAL DAMAGES

Back 20

Consequential damages seek to compensate P for related damages foreseeable at the time of contracting.

They are almost never awarded.

Front 21

RELIANCE DAMAGES

Back 21

Reliance damages seek to put P in the position he would have been in had he never entered into the K.

Front 22

LIQUIDATED DAMAGES

Back 22

A liquidated damages clause is appropriate where money damages are difficult to calculate and the stipulated amount bears a reasonable relationship to anticipated loss.

Front 23

If K unenforceable AFTER P has performed

Back 23

P can get money damages for property/money given to or services rendered to D for VALUE of the BENEFIT.

P can get property back if it is unique or D is insolvent.

Quasi-K: P can be awarded value of D's ill-gotten gain or difference between present value of good less value before benefit conferred by P.

Front 24

If P breaches K

Back 24

Traditionally, P would receive nothing.

Under the modern view, P may still recover but cannot recover more than the K rate and recovery is reduced by damages suffered by D as a result of the breach.

Front 25

If D breaches K

Back 25

P may recover money damages for property/money given to or services rendered to D for the VALUE of the BENEFIT.

P can get property back if D is insolvent.

Front 26

RESCISSION

Back 26

Equitable remedy that allows party to undo the bargain, as if K was never formed.

There must be appropriate grounds for rescission, e.g., mistake, misrepresentation, fraud or duress.

Unilateral mistake is typically not a ground for rescission unless non-mistaken party knows of mistake and proceeds anyway.

Front 27

REFORMATION

Back 27

Equitable remedy where court will rewrite K to reflect parties' true agreement where document does not adequate reflect.

Requires a valid K, appropriate grounds (mutual mistake, unilateral mistake if non-mistaken party knows of mistake, or misrepresentation), and no valid defenses.

Front 28

SPECIFIC PERFORMANCE

Back 28

Equitable remedy where court orders party to perform under K. Requires the following (Chocolate Cheesecake Is My Favorite Dessert)

(1) valid Contract

(2) Conditions satisfied

(3) Inadequate legal remedy

(4) Mutuality - Both parties able to perform. Mutuality of remedy not required under modern view.

(5) no Defenses