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44 Cards in this Set

  • Front
  • Back

What are the legal tort remedies?

Damages


Compensatory


Nominal


Punitive

What are the restitutionary tort remedies?

"D should not be unjustly enriched"




Legal restitutionary remedies


Restitutionary damages


Replevin


Ejectment




Equitable restitutionary remedies


Constructive trusts


Equitable liens

What are the equitable tort remedies

Injunctive relief

4 requirements for compensatory damages (torts)

1. Actual causation (the "but for" test)


2. Proximate causation (injury was foreseeable at the time of the tortious act)


3. Certainty (dmgs can't be too speculative)


4. Unavoidability (P must mitigate the dmgs)

Bar exam tips for proving certainty of damages (torts)

1. past losses have to be established with more certainty than future losses


2. a historical record helps provide certainty


3. future damages = more likely to happen than not


4. applies to economic losses (special damages) but not non-economic losses (e.g. pain and suffering, general damages)

Calculating and paying damages (torts)

"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 P has no actual injury, serve to establish / vindicate P's rights

Punitive damages (torts)

1. awarded to punish D


2. P must first have been awarded compensatory, nominal or restitutionary damages


3. D's fault must be greater than negligence


4. Limited to a single digit multiple of actual damages unless conduct facts are extreme

Restitutionary damages (torts)

Based on the benefit to D. the amount is calculated based on the amout of the benefit

Can P be awarded both compensatory damages and restitutionary damages?

No -- talk about both and award P the larger sum

Replevin (torts)

Restitutionary remedy, P recover possession of specific personal property (chattel)




Establish that:


1. P has a right to possession


2. There is a wrongful withholding by D




Issues:



  • P can recover chattel before the trial by posting a bond, but D can defeat immediate recovery by posting a redelivery bond (and then can keep the chattel until after the trial)
  • The sheriff repossesses the property
  • Replevin is almost always coupled w/ dmgs (compensatory or restitutionary) for lost use or benefit to D during time of detention

Ejectment

P recovers possession of specific real property where


1. P has right to possession


2. there is a wrongful withholding by D




Issues:



  • Ejectment is only available for possession, not easements
  • Sheriff ejects D from property
  • Ejectment is almost always coupled w/ dmgs (compensatory or restitutionary) for lost use or benefit to D during time of detention


Constructive Trust

Imposed on improperly acquired property to which D has title


D serves as trustee and must return property to P

Equitable Lien

Imposed on improperly acquired proprty to which D has title


Property will be subject to an immediate court-directed sale


The monies received go to P


If the proceeds of the sale are less than FMV of property when taken, deficiency judgment will issue for the difference an can be used against D's other assets

Rules for Constructive Trusts and Equitable Liens

1. Inadequate legal remedy alternative (money dmgs inadequate b/c D is insolvent or the property is unique)


2. Tracing is allowed


3. BFPs prevail over P (only option is tracing)


4. P will prevail over unsecured creditors


5. If value of property has gone up, pick constructive trust. If value has gone down, pick equitable lien

Injunctive relief

D is enjoined from to do or refrain from doing something

Temporary injunctive relief

In issue is whether P can obtain temporary / preliminary injunctive relief. To do so, P must meet at 2 part test:


1. Irreparable injury (discuss facts in time-frame context, as in P will be harmed if she doesn't get relief right now, and balance hardships)


2. Likelihood of success (must establish "probability," court may impose bond requirements)

Temporary restraining order (TRO)

Issued pending a hearing to determine whether preliminary injunction should issue


Test is identical to temporary injunctive relief test, except notice and adversarial proceeding NOT required




Notes


can be issued ex parte, but if there an opportunity to give D notice / a chance to appear and contest, good faith effort must be made to do so


TROs limited to 10 days (14 in federal ct)

Permanent Injunction Checklist

Inadequate Legal Remedy Alternative


Feasibility of Enforcement


Balancing of the Hardships


Defenses


("I'm Feeling Bold & Determined")

Inadequate legal remedy alternative

1. Replevin inadequate (b/c sheriff can't find the chattel, D can file a redelivery bond and then run off w/ chattel in interim)


2. Ejectment inadequate (sheriff may refuse to act b/c it would be too extreme)


3. Money dmgs inadequate (too speculative, D is insolvent, irreparable injury, avoiding multiplicity of actions)

Feasibility of enforcement

Negative injuction = no enfocement problem


Mandatory injunction = may be enforcement problem based on (i) difficutly of supervision, or (ii) concern w/ effectively ensuring compliance




Common mandatory injunction fact patterns


1. If act involves application of great taste, skill, or judgment, injunction is denied


2. if an out-of-state act is required, if D is a resident injucntion is granted but if D is non-resident, injunction denied

Balancing of the hardships

P's benefit vs. D's hardship if granted




1. There must be a gross disparity between D's detriment and P's benefit


2. No balancing if D's conduct was wilfull


3. If P loses here, can still get money damages


4. Hardship to the public also taken into account




*common discussion item when torts of nuisance / trespass to land involved

Defenses (to Permanent Injunction action)

1. Unclean hands (bad guy P's improper conduct is related to the lawsuit)


2. Laches (clock starts to run when P learns of the injury, and delays asking for relief until a point when it would be unreasonable or prejudicial to D to allow injunction) (P can still get dmgs)


3. Impossibility


Free speech (if the tort is defamation or a privacy publication branch tort, say "Injunction denied based on free speech grounds.")

Who is bound by an injunction?

Defendant

Employees and agents acting w/ notice

Others acting "in concert" w/ notice

Must obey erroneous injunction?

Yes, it is a court order. Petition the court to have it modified or resolved

Result of disobeying a court order

Civil contempt (to coerce): money (fine) or imprisonment where D holds the keys to the jailhouse




Criminal contempt (to punish): money (fine) or imprisonment (cannot get out of prison)

Remedies for dispossession of personal property

Compensatory dmgs


Restitutionary dmgs (if D benefits)


Replevin


Mandatory injunction (if chattel unique and dmgs / replevin wont work)


Constructive trusts / equitable liens (if D is insolvent / tracing facts involved)


Self-help (reasonable force to recapture)

Remedies for encroachment on real property

Encroachment = piece of real property hangs from one property over the property line of another landowner's premises




Compensatory dmgs


Injunction (emphasize balancing of hardships)


NO restitution

Remedies for nuisance

Compensatory dmgs

Injunction (emphasize balancing of hardships)

NO restitution

What are the contracts remedies?

Legal = damages




Restitutionary




Equitable = specific performance, recission, reformation

Compensatory damages (contract)

Same four elements as torts (causation, foreseeability, certainity, mitigation)




Direct dmgs -- those that flow inherently from the wrong (e.g. expectation dmgs, what position did P expect to be in when conract was formed)


Consequential dmgs -- available for elated dmgs foreseeable at the time of formation (e.g. crank shaft)

Nominal damages (contract)

are allowed

Punitive damages (contract)

NOT allowed (if conduct is willful, see if you can characterize it as fraud)

Liquidated damages clause (contracts)

Clause is valid if:


1. damages are v. difficult to ascertain at time of contract formation


2. this was a reasonable forecast of what they would be (if amount is excessive it is a penalty)




If valid, only liquidated damages are available. If invalid, only actual damages are available




Clause that provides for either actual damages or liquidated damages is invalid

Restitutionary remedies (contracts)

Available when contract fails after partial performance due to being unenforceable or breached

Restitutionary remedies for unenforceable contracts

1. P can get restitutionary dmgs for property / money given to or services rendered for the defendant for the value of the benefit (value of recovery may be greater than the contract rate)

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

Restitutionary remedies for breached contracts

If P is the non-breaching party

1. P can get restitutionary dmgs for property / money given to or services rendered for the defendant for the value of the benefit (value of recovery may be greater than contract rate)

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

If P is the breaching party

Traditional view: no recovery

Modern view: recovery allowed but can't be greater than contract rate / is reduced by any damages suffered by D as result of breach

Specific performance checklist (contracts)

1. Contract is valid / certain and definite


2. Contract conditions of P must be satisfied


3. Inadequate legal remedy alternative


4. Feasibility of enforcement


5. Defenses

Deficiencies fact pattern

Is P the seller or the buyer?




If seller is P, can specifically enforce contract if defect is minor, cannot enforce if defect is major




If buyer is P, can enforce contract even if defect is major but not if defect is very major (like less than half of what was promised)




+ abatement in the purchase price





Time is of the essence clause fact pattern

Land sale contract


Express time is of the essence clause


Forfeiture provision


Partial performance which is now potentially subject to forfeiture


Buyer will have made a late payment


Seller wants to keep both land and any performance rendered to date


Bjyer will bring lawsuit for specific performance




Almost always will award specific performance, b/c equity abhors forfeitures




Look at factors to avoid harsh result


Loss to seller is small


Tardiness is de minimis


Waiver (Seller accepted late payments in past)


Buyer would suffer undue hardship

Inadequate legal remedy alternative

Money dmgs are inadequate b/c they are speculative, D is insolvent, multiple suits are necessary, and thing bargained for is unique




Real property always unique


Chattel not unique unless (1) one of a kind / rare, (2) personal significance to buyer, (3) circumstances make chattel unique




Liquidated damages clause does not make money damages adequate UNLESS clause provides this is the only remedy

Feasibility of enforcement

Personal services contracts are not specifically enforceable (hard to enforce / involuntary servitude)




Covenants not to compete are enforceable if:



  • Services are unique
  • Scope (geographic and duration) is reasonable

Defenses to specific performance

Unclean hands


Laches


Unconscionability (at time of contract formation)


Mistake


Misrepresentation


Statute of Frauds (although if there has been valuable part performance and reliance on the contract, specific performance can be granted_

Recission

Contract voidable by adversely affected party if (i) mistake concerns basic assumption on which K is made, (ii) mistake has material affect on agreed-upon exchange, and (iii) the party seeking avoidance did not assume the risk of hte mistake