Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
62 Cards in this Set
- Front
- Back
|
Chronological order of remedies |
Legal Restitution Equitable |
|
|
Tort legal remedies -- damages |
D is order to pay money to P (i) Compensatory (ii) nominal (iii) punitive |
|
|
Compensatory damages -- torts |
Put the injured party in the position he would have been in had the injury not occurred (1) Causation (but for) (2) Foreseeability (injury must have been foreseeable at the time of the tortious act) (3) Certainty (damages not too speculative) (4) Unavoidability (P must take reasonable steps to mitigate the damages) |
|
|
Compensatory damages -- torts Personal injury Certainty |
Economic losses e.g., medical expenses & lost earnings -- certainty rules Noneconomic losses e.g., pain & suffering -- the jury may award any amount it wishes subject to proper instructions |
|
|
Compensatory damages -- torts Personal injury Form of judgment payment |
"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) |
|
|
Nominal damages -- torts |
Awarded where plaintiff has no actual injury They serve to establish or to vindicate the plaintiff's rights |
|
|
Punitive damages -- torts |
These are awarded to punish the defendant P must have first been awarded compensatory or nominal damages D's type fault must be greater than negligence Shouldn't be larger than 9-1 |
|
|
Restitutionary remedy -- damages |
D should not be unjustly enriched Based on the benefit to D |
|
|
Compensatory & restitutionary damages |
Cannot be awarded together -- give P the larger sum |
|
|
Legal restitutionary remedy -- replevin |
P recovers possession of specific personal property P must show (1) P has a right to possession & (2) there is a wrongful withholding by D |
|
|
Replevin & timing & bond |
P can recover the chattel before the trial P will have to post a bond BUT D can defeat an immediate recovery by posting a redelivery bond (& keep the chattel until after the trial) |
|
|
Legal restitutionary remedy -- ejectment |
P recovers possession of specific real property (1) The P has a right to possession (2) There is a wrongful withholding by D *Available only against D who has possession of property e.g., holdover tenant |
|
|
Equitable restitutionary remedy -- constructive trust |
Imposed on improperly acquired property to which D has title D serves as "trustee" & must return the property to the P |
|
|
Equitable restitutionary remedy -- equitable lien |
Imposed on improperly acquired property to which D has title --Property will be subject to an immediate court-directed sale-->$$ go to P --If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference |
|
|
When will constructive trusts or equitable liens (equitable restitutionary remedies) be necessary (over money damages)? |
D is insolvent OR For constructive trusts--the property is unique |
|
|
Tracing for equitable restitutionary remedies |
If D sold the property...P can trace the money right into the bank |
|
|
Equitable restitutionary remedies & BFPs |
BFPs will prevail over P |
|
|
Equitable restitutionary remedies & unsecured creditors |
P will prevail over unsecured creditors |
|
|
Equitable remedies & injunctive relief |
D is ordered to do or refrain from doing something |
|
|
Equitable remedies & permanent injunction |
Issued after full trial on merits |
|
|
Equitable remedies & preliminary injunction |
Issued pending trial on merits (1) Establish there is a reparable injury i.e., that she will incur irreparable injury while if waits v. hardship on D (2) P's likelihood of success Court should impose bond requirement on P to reimburse D if P does not succeed |
|
|
Preliminary Injunction Sample Answer |
"In issue is whether plaintiff can obtain temporary/preliminary injunctive relief. To do so, plaintiff must meet a 2-part test: (i) irreparable injury and (ii) likelihood of success." |
|
|
Equitable Remedies & TRO |
Issued pending a hearing to determine whether preliminary injunction should issue --P must show reparable injury likelihood of success --BUT TRO can be ex part i.e., notice & adversarial proceeding is not required (should make good faith effort to give D notice) |
|
|
Equitable Remedies & Permanent Injunctive Relief Part 1: Inadequate Legal Remedy Alternative |
--Other remedies inadequate: (1) Replevin (maybe sheriff can't recover it or D filed a redlivery bond & ran away w/ it) (2) Ejectment (maybe sheriff refuses to act) (3) Money damages (too speculative, D is insolvent, irreparable injury) (4) avoiding a multiplicity of actions |
|
|
Equitable Remedies & Permanent Injunctive Relief Part 2: Feasibility of Enforcement |
Negative injunction--there is no enforcement problem Mandatory injunction--there may be an enforcement problem based on the difficulty of supervision or concern w/ effectively ensuring compliance e.g., act involves the application of great taste, skill, or judgment or an out of state act is required |
|
|
Equitable Remedies & Permanent Injunctive Relief Part 3: Balancing of Hardships |
P's benefit v. D's hardship if relief granted 1. Gross disparity between D's detriment & P's benefit 2. No balancing if D's conduct was willful 3. If balance hardships-->consider awarding P money damages 4. Hardship to the public-->award P money damages |
|
|
Defenses to Permanent Injunction |
--Unclean hands: available only if P's alleged improper conduct is related to the lawsuit --Laches: running of time (clock starts to run when P learns of the injury & cuts off when it has been unreasonable & prejudicial to D) --Impossibility: impossible for D to carry out terms of injunction --Free speech: "Injunction denied based on free speech grounds." |
|
|
Who will be bound by an injunction? |
D, employees & agents acting w/ notice, others acting "in concert" w/ notice |
|
|
Erroneous injunction |
Still have to obey it One must have it modified or resolved |
|
|
Contempt |
Disobeyance of court order Civil--money (fine) or imprisonment (can get out by agreeing to comply) Criminal--money (fine) or imprisonment (can not get out of prison) |
|
|
Torts
Has P been injured? |
Compensatory |
|
|
Torts Has D derived a benefit? |
Restitution (unjust enrichment) |
|
|
Torts Does P want the property returned? |
Replevin or ejectment |
|
|
Torts Is P still being harmed? |
Injunction |
|
|
Contracts legal remedies |
D is order to pay money to P (i) Compensatory (ii) nominal (iii) punitive |
|
|
Contracts legal remedies -- compensatory |
Based on the injury to P (1) Causation (but for) (2) Foreseeability (tested at the time of formation) (3) Certainty (damages not too speculative) (4) Mitigation |
|
|
Contracts legal remedies -- compensatory Direct damages |
Those damages that flow inherently from the wrong The expectation measure: what P expected - what she got |
|
|
Contracts legal remedies -- compensatory Consequential damages |
Available for related damages foreseeable at the time of formation E.g., the lost reputation fact pattern |
|
|
Contracts legal remedies -- nominal |
Are allowed |
|
|
Contracts legal remedies -- punitive |
Not allowed |
|
|
Contracts legal remedies The liquidated damages clause |
Test for validity (1) Damages are very difficult to ascertain at time of K formation (2) This was a reasonable forecast of what they would be (cf. if amount is excessive this would be a penalty) Valid--only liquidated amount available; invalid--only actual damages available |
|
|
Contracts restitutionary damages When does it occur? |
The K is unenforceable e.g., lack of capacity OR The K is breached |
|
|
Contracts restitutionary damages Unenforceable Ks |
P can recover for the value of the benefit incurred on D P can recover for value of services even if K price lower P can get the property back if it is unique or D is insolvent |
|
|
Contracts restitutionary damages Breached Ks P as NONbreaching party |
P can recover for the value of the benefit incurred on D P can recover for value of services even if K price lower P can get the property back if it is unique or D is insolvent |
|
|
Contracts restitutionary damages Breached Ks P as BREACHING party |
Traditional view--no recovery Modern view--recovery is allowed (but cannot be greater than K rate & reduced by any damages suffered by D as a result of the breach) |
|
|
Contracts equitable remedy Specific performance |
D is required to perform the K |
|
|
Contracts equitable remedy Specific performance Part 1: K is valid/certain & definite |
P must be able to show the K is valid |
|
|
Contracts equitable remedy Specific performance Part 2: K conditions of P must be satisfied P as seller |
P can specifically enforce the K if the defect is minor P cannot enforce the K if the defect is major (unless the seller can cure the defect by closing) |
|
|
Contracts equitable remedy Specific performance Part 2: K conditions of P must be satisfied P as buyer |
P can enforce the K even if the defect is major* P cannot enforce the K if the defect is very major *Court will lower the purchase price to take into account this defect in consideration ("abatement) |
|
|
Contracts equitable remedy Specific performance Part 2: K conditions of P must be satisfied Time of the essence |
Buyer does not meet K condition of timely performance & there is a time is of the essence clause, including the forfeiture of all performance rendered to date if not timely) "Equity abhors forfeitures"-->look to whether loss to seller is small, tardiness is de minimis, waiver, buyer would suffer undue hardship |
|
|
Contracts equitable remedy Specific performance Part 3: Inadequate legal remedy alternative |
1. Damages are speculative 2. D is insolvent 3. Multiple suits are necessary 4. The thing bargained for is unique (always applies to real property / personal property--one of a kind, very rare, personal significance to buyer, circumstances make chattel unique) |
|
|
Contracts equitable remedy Specific performance Part 3: Inadequate legal remedy alternative Liquidated damages clauses |
A liquidated damages clause does not make money damages adequate-->specific performance is still available EXCEPT where the clause proves that this is to be the only remedy |
|
|
Contracts equitable remedy Specific performance Part 4: feasibility of enforcement Personal services K |
NOT enforceable (1) Enforcement problem (2) Involuntary servitude |
|
|
Contracts equitable remedy Specific performance Part 4: feasibility of enforcement Covenants not to compete (solution to personal services K) |
(1) Services are unique (2) Scope (geographic & duration) is reasonable |
|
|
Contracts equitable remedy Specific performance Part 5: Equitable Defenses |
--Unclean hands --Laches --Unconscionability (more than simply a bad deal) |
|
|
Contracts equitable remedy Specific performance Part 5: Contract defenses |
1. Mistake 2. Misrepresentation 3. SoF --If one has render (i) valuable part performance* (ii) in reliance on the K-->specific performance granted *(1) payment (in whole or part), (2) possession, or (3) valuable improvements (2/3) or (4) valuable services |
|
|
Contracts equitable remedy Rescission Step 1: Grounds for rescission |
Original K is considered voidable & rescinded 1. Mistake 2. Misrepresentation 3. Coercion 4. Undue influence 5. Lack of capacity 6. Failure of consideration 7. Illegality |
|
|
Contracts equitable remedy Rescission & mistake Step 1: Grounds for rescission |
Mutual mistake --Material fact: rescission granted --Collateral fact: rescission denied Unilateral mistake --Rescission denied --EXCEPTION: the non-mistaken party knows or should have known of the mistake |
|
|
Contracts equitable remedy Rescission & misrepresentation Step 1: Grounds for rescission |
Rescission granted (but P must show that they have actually relied upon the misrepresentation |
|
|
Contracts equitable remedy Rescission Step 2: Valid defenses |
Unclean hands Laches |
|
|
Contracts equitable remedy Rescission Misc. |
P sues for damages first-->rescission is NOT allowed P sues for rescission first-->damages are allowed & may sue for damages along w/damages Previous performance-->subject to restitution |
|
|
Contracts equitable remedy Reformation |
1. Valid K 2. Grounds for reformation --Mutual mistake: reformation granted --Unilateral mistake: reformation denied EXCEPT where the non-mistaken party knows of the mistake --Misrepresentation: reformation granted 3. Defenses: unclean hands or laches |
