Remedies

Front 1

For torts, what are the legal remedies?

Back 1

Damages

Front 2

For torts, what are the legal restitutionary remedies?

Back 2

Restitutionary damages, replevin, ejectment

Front 3

For torts, what are the equitable restitutionary remedies?

Back 3

Constructive trusts / equitable liens

Front 4

For torts, what are the equitable remedies?

Back 4

Injunctive relief

Front 5

What are the four requirements for damages in torts?

Back 5

1. Causation (factual)

2. Foreseeability

3. Certainty (can't be too speculative)

4. Unavoidability (mitigation)

Front 6

What is the all-or-nothing rule?

Back 6

Plaintiff must show future damages are greater than 50% likely to happen

Front 7

What are the certainty rules for economic losses?

Back 7

Calculation must have sufficient certainty

Front 8

What are the certainty rules for noneconomic losses?

Back 8

The jury can award any amount it wishes (regardless of certainty)

Front 9

What are two statistical considerations while calculating payment of compensatory damages?

Back 9

"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 10

Usually, what are the purpose of nominal damages?

Back 10

Establishing rights, in absence of actual injury

Front 11

What is a threshold requirement for punitive damages?

Back 11

Award of compensatory, nominal, or restitutionary damages

Front 12

What is the basic concept of restitutionary damages?

Back 12

Defendant should not be unjustly enriched

Front 13

What are restitutionary damage calculations based on?

Back 13

Benefit conferred on defendant

Front 14

When is replevin available?

Back 14

1. Plaintiff has a right to possession

2. There is wrongful withholding by defendant

Front 15

Who delivers the property after success on replevin suit?

Back 15

Sheriff

Front 16

What triggers a right to ejectment?

Back 16

1. Plaintiff has right to possession

2. There is wrongful withholding by defendant

Defendant must be in possession

Front 17

What remedies almost always pair with ejectment and replevin?

Back 17

Damages (compensatory or resitutionary)

Front 18

What is constructive trust?

Back 18

Defendant acquired property title. Must serve as trustee and return property to plaintiff.

Value has gone up.

Front 19

What is an equitable lien?

Back 19

Defendant acquired property title. Court-ordered sale, money to plaintiff. If insufficient, get deficiency judgment.

Value has gone down.

Front 20

What are the four basic rules of constructive trusts and equitable liens?

Back 20

1. Inadequate legal remedy alternative

2. Tracing is allowed

3. Bonafide purchaser

4. Plaintiff will prevail over unsecured creditors (save deficiency judgments)

Front 21

When is temporary injunctive relief available?

Back 21

1. Irreparable injury (in time-frame context, balancing of hardships)

2. Plaintiff's likelihood of success

Front 22

What are the bond requirements for replevin (and ejectment and temporary injunctions)?

Back 22

Plaintiff can post bond to receive property immediately (or get ejection, temporary injunction). Defendant can post redelivery bond to get it back.

Front 23

How are temporary restraining orders different from temporary injunctions?

Back 23

1. TROs can be ex parte, after good faith effort

2. TROs are limited to 10 days, 14 in federal court

Front 24

What is the four-part test for permanent injunction?

Back 24

1. Inadequate legal remedy alternative

2. Feasibility of enforcement

3. Balancing of hardships (unless willful acts)

4. Defenses

Front 25

When would replevin be inadequate?

Back 25

Sheriff may not be able to recover (find) it, or defendant could destroy it after redelivery bond

Front 26

When would ejectment be inadequate?

Back 26

Sheriff refuses to act

Front 27

When would money damages be inadequate?

Back 27

Damages are too speculative; defendant is insolvent; truly irreparable injury (e.g. pollution); avoid multiplicity of actions (i.e. prior history of litigation between parties)

Front 28

What interests are balancing in determining a permanent injunction?

Back 28

1. Defendant's hardship

2. Public's hardship

If injunction denied, compensate with money

Front 29

What defenses are available to permanent injunctions?

Back 29

1. Unclean hands

2. Laches

3. Impossibility

4. Free speech

Front 30

How does laches differ from statute of limitations?

Back 30

Laches is concerned with effect of passage of time; statute of limitations only cares about passage of time. Laches is always shorter.

Front 31

Who is bound by injunction?

Back 31

Parties, employees and agents acting with notice, others acting "in concert" with notice

Front 32

What remedy almost always follows injunctions?

Back 32

Damages, for injuries incurred in time period prior to getting injunction

Front 33

What are the four types of damages in contract law?

Back 33

1. Compensatory (allowed)

2. Nominal (allowed)

3. Punitive (not allowed, but characterize as fraud for punitives in tort)

Front 34

When are liquidated damages are available?

Back 34

1. Damages are difficult to ascertain at time of contract formation

2. Liquidated damages are reasonable forecast. Excessive are "penalties"

Front 35

When do restitutionary remedies arise in contract?

Back 35

Contract was unenforceable; OR

Contract was breached

Front 36

What restitution is available for a breaching party under contract?

Back 36

Traditional view: no recovery

Modern view: recovery, minus damages. Can't be bigger than contract rate.

Front 37

When is specific performance available under contract?

Back 37

1. Contract is valid, certain, and definite

2. Plaintiff's contract conditions must be satisfied

3. Inadequate legal remedy alternative

4. Feasibility of enforcement

5. Defenses

Front 38

When does equity abhor forfeitures, under specific performance for land sale contracts?

Back 38

1. Loss to seller is small

2. Tardiness is de minimis

3. Waiver (seller accepted late payment)

4. Buyer would suffer undue hardship

Front 39

When are covenants not to compete enforceable?

Back 39

1. Service is unique

2. Reasonable geographic scope

Front 40

What are defenses to specific performance?

Back 40

Equitable:

1. Unclean hands

2. Laches

3. Unconscionability (at time of formation)

Contract:

1. Mistake

2. Misrepresentation

3. Statute of Frauds

Front 41

What triggers rescission of the contract?

Back 41

1. Grounds for rescission

Front 42

What are grounds for rescission?

Back 42

1. Mistake

2. Misrepresentation

3. Coercion

4. Undue Influence

5. Lack of capacity

6. Failure of consideration

7. Illegality

Front 43

When collateral facts trigger mutual mistakes?

Back 43

Those that go to quality, desirability, fitness for a particular use. Mistaken party must show undue hardship with no rescission.

Front 44

What are defenses against rescission?

Back 44

1. Unclean hands

2. Laches

Not negligence.

Front 45

Which remedy for contract precludes the other, if claimed first - damages or rescission?

Back 45

Rescission

Front 46

When is reformation of a contract available?

Back 46

1. Valid contract (meeting of minds)

2. Grounds for reformation

3. Defenses

Front 47

What is reformation?

Back 47

Change of written agreement to conform with parties' original understanding

Front 48

Under unilateral mistake, how does reformation differ from rescission?

Back 48

Rescission: nonmistaken party knows or should have known of mistake

Reformation: nonmistaken party knows of mistake

Front 49

What are defenses to reformation?

Back 49

1. Unclean hands

2. Laches

Not negligence of plaintiff, Statute of Frauds, Parol Evidence