Remedies

Front 1

Torts Remedies

Back 1

1. Legal Remedies (Damages)

2. Restitutionary Remedies (Legal/Equitable)

3. Equitable Remedies

Front 2

Torts: Legal Remedies (Damages)

Back 2

1. Compensatory

2. Nominal

3. Punitive

Front 3

Torts: Compensatory Damages

Back 3

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

4. Unavoidability - reasonable steps to mitigate damages

Front 4

Torts: Compensatory Damages - Form of Judgment Payment

Back 4

"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 5

Torts: Nominal Damages

Back 5

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

Front 6

Torts: Punitive Damages

Back 6

Awarded to punish D

1. 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 7

Torts Remedies: Restitutionary

Back 7

1. Legal

(1) Restitutionary Damages

(2) Replevin

(3) Ejectment

2. Equitable

(1) Constructive Trusts

(2) Equitable Lien

Front 8

Torts: "Legal" Restitutionary Remedy (Restitutionary Damages)

Back 8

1. Theory: D should not be unjustly enriched

2. Amount calculated based on value of benefit to D

3. 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 9

Torts: "Legal" Restitutionary Remedy (Replevin)

Back 9

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 10

Torts: Replevin (issues with recovery)

Back 10

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

*TIP: Replevin almost always coupled with compensatory/restitutionary damages

Front 11

Torts: "Legal" Restitutionary Remedy (Ejectment)

Back 11

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

Front 12

Torts: "Equitable" Remedy (Constructive Trust)

Back 12

1. D has title to property

2. which was improperly acquired

3. P has NO adequate remedy at law (e.g., D's insolvency)/ property is unique

* Remedy: D serves as "trustee" and must return property to P

Front 13

Torts: "Equitable" Remedy (Equitable Lien)

Back 13

1. D has title to property

2. which was improperly acquired

* Remedy: Property subject to an immediate court-directed sale and proceeds go to P

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

Front 14

Choice of Remedy: Equitable Lien vs. Constructive Trust

Back 14

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 - Equitable Lien

Front 15

Torts: Equitable Remedies (Injunctive Relief)

Back 15

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

1. Permanent Injunction

2. Temporary Injunction

Front 16

Torts (Injunctive Relief): Temporary Injunction

Back 16

1. Irreparable injury

- Time-frame context

- Balancing of hardships against D

2. P's likelihood/probability of success

- Court imposes a bond requirement on P

Front 17

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

Back 17

Requirements are identical to Temporary Injunction

Can be ex parte (NO notice/adversarial proceeding)

Front 18

Torts (Injunctive Relief): Permanent Injunction

(I'm Feeling Bold & Determined!)

Back 18

1. Inadequate Legal Remedy

2. Feasibility of Enforcement

3. Balancing of Hardships

4. Defenses

Front 19

Permanent Injunction:

(1) Inadequate Legal Remedy

Back 19

Inadequate:

1. Replevin

2. Ejectment

3. Money Damages

(1) Too speculative

(2) D is insolvent

(3) Irreparable injury

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

Front 20

Permanent Injunction:

(2) Feasibility of Enforcement

Back 20

"Mandatory" Injunction's enforcement problem

1. Act involves application of great taste, skill or judgment

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

Front 21

Permanent Injunction:

(3) Balancing of Hardships

Back 21

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 22

Permanent Injunction:

(4) Defenses

Back 22

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

2. Laches

3. Impossibility

4. Free Speech

Front 23

Permanent Injunction (Defenses): Laches

Back 23

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 24

Tort Remedies: Who will be bound by an Injunction?

Back 24

1. Parties

2. Employees and agents acting with notice

3. Others acting "in concert" with notice

Front 25

Contracts Remedies (3)

Back 25

1. Legal Remedies

2. Restitutionary Remedies

3. Equitable Remedies

(1) Specific Performance

(2) Rescission

(3) Reformation

Front 26

Contracts: Legal Remedies

Back 26

1. Compensatory

2. Nominal

3. Punitive (NOT Allowed)

Front 27

Contracts: Legal Remedies (Compensatory)

Back 27

1. Direct damages - damages that flow inherently from the wrong (expectation damages)

2. Consequential damages

Front 28

Contracts: Specific Performance

(Cha-Cha Is Fairly Difficult)

Back 28

1. Contract is valid/certain & definite

2. Conditions of P satisfied

3. Inadequate legal remedy alternative

4. Feasibility of enforcement

5. Defenses

Front 29

Contracts: Specific Performance (Inadequate legal remedy alternative)

Back 29

1. Damages are speculative

2. D is insolvent

3. Multiple suits are necessary

4. Thing bargained for is unique

(1) Real property

(2) Personal property

- One of a kind

- Personal significance to Buyer

- Circumstances make chattel unique at time of litigation

Front 30

Contracts: Specific Performance (Covenants Not to Compete)

Back 30

Enforceable if:

1. Services are unique; and

2. The scope (geographic & duration) is reasonable

Front 31

Contracts: Specific Performance (Defenses)

Back 31

1. Unclean Hands

2. Laches

3. Unconscionability

4. Mistake

5. Misrepresentation

6. Staute of Frauds

Front 32

Contracts (Equitable Remedy): Rescission

Back 32

1. Grounds for Rescission

2. Valid Defenses

Front 33

Contracts (Rescission): Grounds for Rescission

Back 33

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 34

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

Back 34

Generally: NO Rescission

Exceptions

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

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

Front 35

Contracts (Rescission): Defenses

Back 35

1. Unclean hands

2. Laches

*But NOT P's negligence

Front 36

Contracts Remedies: Rescission vs. Damages

Back 36

If P sues for damages first rescission is NOT allowed (vice-versa is OK)

Front 37

Contracts Equitable Remedies: Reformation

Back 37

Change written agreement to conform with parties' original understanding if:

1. Valid K

2. Grounds for Reformation

3. Valid Defenses

Front 38

Contracts Equitable Remedies: Grounds for Reformation

Back 38

1. Mutual Mistake

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

3. Misrepresentation

Front 39

Contracts Equitable Remedies (Reformation): Valid Defenses

Back 39

1. Unclean hands

2. Laches

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