Remedies

Front 1

How to spot Remedies Question

Back 1

1. Uses the word "remedies"

2. Uses the word "relief"

3. State a specific remedy (e.g., specific performance, injunction)

Front 2

Torts Remedies

Back 2

1. Legal Remedies (Damages)

2. Restitutionary Remedies (Legal/Equitable)

3. Equitable Remedies

Front 3

Torts: Legal Remedies (Damages)

Back 3

1. Compensatory

2. Nominal

3. Punitive

Front 4

Torts: Compensatory Damages

Back 4

Put injured party in the position he would have been in had the injury not occurred

1. Causation - actual causation

2. Foreseeability - proximate causation

3. Certainty - damages cannot be too speculative

- Future damages - "more likely to happen than not"

- Exception: Non-Economic losses (pain & suffering)

4. Unavoidability - reasonable steps to mitigate damages

Front 5

Torts: Compensatory - Form of Judgment Payment

Back 5

"The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule)"

Front 6

Torts: Nominal Damages

Back 6

P has no actual injury but wants to establish/vindicate P's rights

Front 7

Torts: Punitive Damages

Back 7

Awarded to punish D

1. P must first be awarded with compensatory/nominal damages

2. D's fault must be greater than negligence

2. Awarded in an amount relatively proportionate to actual damages (single digit multiple of actual damages)

Front 8

Torts Remedies: Restitutionary Remedies

Back 8

D should not be unjustly enriched

1. Legal

(1) Restitutionary Damages

(2) Replevin

(3) Ejectment

2. Equitable

(1) Constructive Trusts

(2) Equitable Lien

Front 9

Torts: "Legal" Restitutionary Remedy (Restitutionary Damages)

Back 9

1. Amount calculated based on value of benefit to D

2. Punitive damages can be attached (as long as underlying cause of action is in tort)

* TIP: If both compensatory and restitutionary damages are available write about both and give P the larger sum

Front 10

Torts: "Legal" Restitutionary Remedy (Replevin)

Back 10

P recovers possession of specific personal property if:

1. P has a right to possession; and

2. There is a wrongful withholding by D

Front 11

Torts: Replevin (issues with recovery)

Back 11

P can recover chattel before the trial. If this is an issue:

1. P will have to post a bond

2. D can defeat an immediate recovery by posting a redelivery bond

* Almost always coupled with compensatory/restitutionary damages for lost use or benefit to D during time of detention

Front 12

Torts: "Legal" Restitutionary Remedy (Ejectment)

Back 12

P recovers possession of specific real property

1. P has a right to possession; and

2. There is a wrongful possession of property by D

* Almost always coupled with compensatory/restitutionary damages for lost use or benefit to D during time of detention

Front 13

Torts: "Equitable" Restitutionary Remedy (Elements)

Back 13

1. D has title to property

2. due to D's wrongdoing

3. D's retention of property would result in unjust enrichment; AND

4. Inadequate legal remedy

TIP: Tracing is allowed

P will prevail over unsecured creditors

Front 14

Torts: "Equitable" Restitutionary Remedy (Constructive Trust)

Back 14

D serves as "trustee" and must return property to P

Tracing: P can impose a constructive trust on proceeds of the wrongfully obtained property

Front 15

Torts: "Equitable" Restitutionary Remedy (Equitable Lien: elements)

Back 15

1. D misappropriated P's property under circumstances creating a debt/obligation to pay;

2. P's property can be traced to property held by D;

3. D's retention of P's property would result in unjust enrichment; AND

4. Legal remedy is inadequate

Front 16

Torts: "Equitable" Restitutionary Remedy (Equitable Lien)

Back 16

1. Property subject to an immediate court-directed sale and proceeds go to P

2. If proceeds are less than FMV of property when it was taken, deficiency judgment will be issued for difference

3. Can be enforced only up to amount of P's claim

Front 17

Choice of Restitutionary Remedy:

Equitable Lien vs. Constructive Trust

Back 17

1. Property value subsequent to taking:

(1) Goes up - Constructive Trust

(2) Goes down - Equitable Lien

2. If D did NOT use P's property to acquire title (e.g., makes improvements to his own property) - Equitable Lien

Front 18

Torts: Equitable Remedy (Injunctive Relief)

Back 18

D is ordered/enjoined to do/not to do something

1. Preliminary Injunction

2. Permanent Injunction

Front 19

Torts (Injunctive Relief): Preliminary Injunction

Back 19

1. Irreparable injury before trial

- Time-frame context

- Balancing of hardships against D

2. P's likelihood/probability of success

- Court imposes a bond requirement on P

Front 20

Torts (Injunctive Relief): Temporary Restraining Order vs. Preliminary Injunction

Back 20

1. Emergency order imposed to maintain statos quo

2. pending a hearing to determine whether to issue preliminary injunction

*Requirements are identical to Preliminary Injunction

*Proceeding can be ex parte (NO notice/adversarial proceeding but good-faith effort required)

Front 21

Torts (Injunctive Relief): Permanent Injunction

(I'm Feeling Bold & Determined!)

Back 21

1. Inadequate Legal Remedy

2. Feasibility of Enforcement

3. Balancing of Hardships

4. Defenses

Front 22

Permanent Injunction:

(1) Inadequate Legal Remedy

Back 22

Inadequate:

1. Replevin

2. Ejectment - Sheriff may refuse to act

3. Money Damages

(1) Too speculative

(2) D is insolvent

(3) Irreparable injury

(4) Avoid multiplicity of actions (prior litigation between parties)

Front 23

Permanent Injunction:

(2) Feasibility of Enforcement

Back 23

1. Must the Court exercise too much Supervision?

2. "Negative" Injunction - No enforcement problem

3. "Mandatory" Injunction

(1) Act involves application of great taste, skill or judgment

(2) Non-Resident's out-of-state act is required

Front 24

Permanent Injunction:

(3) Balancing of Hardships

Back 24

1. Gross disparity between D's detriment and P's benefit

2. NO BALANCING if D's conduct was willful

3. Consider awarding P money damages

4. Take into account any hardship to the public

Ex) Nuisance, trespass to land

Front 25

Permanent Injunction:

(4) Defenses

Back 25

1. Unclean Hands (P's improper conduct related to lawsuit)

2. Laches (effect of the passage of time)

3. Impossibility (impossible for D to carry out terms of injunction)

4. Free Speech (Defamation or privacy publication breach)

Front 26

Permanent Injunction (Defenses): Laches

Back 26

1. Clock starts to run when P learns of the injury

2. Unreasonable delay that is prejudicial to D cuts off right to equitable relief

3. Consider awarding money damages

Front 27

Tort Remedies: Who will be bound by an Injunction?

Back 27

1. Parties

2. Employees and agents acting with notice

3. Others acting "in concert" with notice

Front 28

Contracts Remedies (3)

Back 28

1. Legal Remedies

2. Restitutionary Remedies

3. Equitable Remedies

(1) Specific Performance

(2) Rescission

(3) Reformation

Front 29

Contracts: Legal Remedies

Back 29

1. Compensatory

2. Nominal

3. Punitive (NOT Allowed)

Front 30

Contracts: Legal Remedies (Compensatory)

Back 30

1. Direct/ Expectation damages - measured by the benefit of the bargain; OR

2. Consequential damages

- Cannot be too speculative

Front 31

Contracts: Restitutionary Remedies

Back 31

1. Money restitution for

2. Benefits unjustly retained by D

3. when there is a void OR unenforceable K

4. permitting recovery in Quasi-K OR Quantum Meruit

* Breaching party can recover = (K price) - (Damages suffered by D as a result of the breach)

Front 32

Contracts: Specific Performance

(Cha-Cha Is Fairly Difficult)

Back 32

1. Contract is valid/certain & definite

2. Conditions of P satisfied

3. Inadequate legal remedy alternative

4. Feasibility of enforcement

5. Defenses

Front 33

Contracts: Specific Performance (Conditions of P satisfied)

Back 33

P already performed/ ready and able to perform/ excused from performing

1. Deficiency remains - "There will be an abatement in the purchase price to take into account the defect"

2. "Time of the Essence" + Forfeiture Clause - Court looks at various factors to avoid forfeiture:

- Loss to Seller is small

- Tardiness is de minimis

- Waiver (seller has accepted late payments in past)

- Buyer would suffer undue hardship

Front 34

Contracts: Specific Performance (Inadequate legal remedy alternative)

Back 34

1. Damages are speculative

2. D is insolvent

3. Multiple suits are necessary

4. Replevin/ Ejectment

5. Thing bargained for is unique

(1) Real property

(2) Personal property (One of a kind/ Personal significance/ circumstances make chattel unique at time of litigation)

Front 35

Contracts: Specific Performance (Covenants Not to Compete)

Back 35

Enforceable if:

1. Services are unique; and

2. The scope (geographic & duration) is reasonable

Front 36

Contracts: Specific Performance (Defenses)

Back 36

1. Unclean Hands

2. Laches

3. Unconscionability

4. Mistake

5. Misrepresentation

6. Staute of Frauds

Front 37

Contracts (Equitable Remedy): Rescission

Back 37

Original K is considered voidable and rescinded if:

1. Grounds for Rescission; and

2. Valid Defenses

Front 38

Contracts (Rescission): Grounds for Rescission

Back 38

1. Material Mistake

2. Misrepresentation (and P's actual reliance)

3. Coercion

4. Undue Influence

5. Lack of Capacity

6. Lack of Consideration

7. Illegality

Front 39

Contracts (Rescission): Grounds for Rescission (Material Unilateral Mistake)

Back 39

Generally: NO Rescission

Exceptions

1. Non-mistaken party knows/should have known of the mistake; OR

2. Mistaken party would suffer undue hardship if there is no rescission

Front 40

Contracts (Rescission): Defenses

Back 40

1. Unclean hands - P's inequitable/wrongful conduct regarding the transaction

2. Laches

3. Election of Remedies (if P sues for damages first, rescission is not available- vice versa is OK)

*P's negligence is NOT a defense

Front 41

Contracts Equitable Remedies: Reformation

Back 41

K is valid+enforceable but the written form is wrong. Change written agreement to conform with parties' original understanding if:

1. Valid K

2. Grounds for Reformation; AND

3. NO Valid Defenses

Front 42

Contracts Equitable Remedies: Grounds for Reformation

Back 42

1. Mutual Mistake

2. Unilateral Mistake if non-mistaken party knows of the mistake

3. Misrepresentation

Front 43

Contracts Equitable Remedies (Reformation): Valid Defenses

Back 43

1. Unclean hands

2. Laches

* But NOT (1) Negligence of P, (2) Statute of Frauds, (3) Parol Evidence Rule