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44 Cards in this Set
- Front
- Back
What are the legal tort remedies? |
Damages Compensatory Nominal Punitive |
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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 |
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What are the equitable tort remedies |
Injunctive relief |
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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) |
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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) |
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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)." |
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Nominal damages (torts) |
Awarded where P has no actual injury, serve to establish / vindicate P's rights |
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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 |
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Restitutionary damages (torts) |
Based on the benefit to D. the amount is calculated based on the amout of the benefit |
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Can P be awarded both compensatory damages and restitutionary damages? |
No -- talk about both and award P the larger sum |
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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:
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Ejectment |
P recovers possession of specific real property where 1. P has right to possession 2. there is a wrongful withholding by D Issues:
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Constructive Trust |
Imposed on improperly acquired property to which D has title D serves as trustee and must return property to P |
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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 |
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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 |
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Injunctive relief |
D is enjoined from to do or refrain from doing something |
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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) |
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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) |
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Permanent Injunction Checklist |
Inadequate Legal Remedy Alternative Feasibility of Enforcement Balancing of the Hardships Defenses ("I'm Feeling Bold & Determined") |
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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) |
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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 |
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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 |
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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.") |
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Who is bound by an injunction? |
Defendant
Employees and agents acting w/ notice
Others acting "in concert" w/ notice |
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Must obey erroneous injunction? |
Yes, it is a court order. Petition the court to have it modified or resolved |
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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) |
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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) |
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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 |
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Remedies for nuisance |
Compensatory dmgs
Injunction (emphasize balancing of hardships)
NO restitution |
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What are the contracts remedies? |
Legal = damages Restitutionary Equitable = specific performance, recission, reformation |
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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) |
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Nominal damages (contract) |
are allowed |
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Punitive damages (contract) |
NOT allowed (if conduct is willful, see if you can characterize it as fraud) |
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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 |
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Restitutionary remedies (contracts) |
Available when contract fails after partial performance due to being unenforceable or breached |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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Feasibility of enforcement |
Personal services contracts are not specifically enforceable (hard to enforce / involuntary servitude) Covenants not to compete are enforceable if:
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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_ |
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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 |