Remedies

Front 1

What is the permanent injunction checklist?

Back 1

1) Inadequate legal remedy alternative
2) Property right/protectable interest requirement
3) Feasibility of enforcement
4) Balancing of hardships
5) Defenses
Note: I Put Five Bucks Down

Front 2

When would money damages be inadequate such that injunctive relief is available?

Back 2

1) They're too speculative
2) Defendant is insolvent
3) Irreparable injury (includes unique property)
4) Avoiding a multiplicity of actions

Front 3

What sort of right must you have to secure injunctive relief?

Back 3

1) Traditional (majority): protectable property right
2) Modern (strong majority): just a protectable interest

Front 4

Should a court grant an affirmative injunction requiring an out-of-state act?

Back 4

1) Resident defendant: yes (D is within the court's reach)
2) Nonresident defendant: no

Front 5

What is the balance of hardship analysis for injunctions?

Back 5

1) There must be a GROSS DISPARITY between detriment and benefit.
2) There is NO balancing if D's conduct was willful
3) Hardship to the public is also taken into account

Front 6

When is the unclean hands defense available in equity?

Back 6

ONLY if plaintiff's alleged improper conduct is related to the lawsuit.

Front 7

When does the clock start running for laches?

Back 7

When P is aware of the injury.

Front 8

When is the defense of laches available?

Back 8

When the delay has been both UNREASONABLE and PREJUDICIAL to the defendant.

Front 9

Who is bound by an injunction?

Back 9

1) Parties
2) Employees & agents with NOTICE
3) Third persons acting with NOTICE

Front 10

When is contempt available for non-compliance with a money judgment?

Back 10

ONLY for alimony and child support.

Front 11

What is the analytical order for discussing remedies?

Back 11

1) Legal remedies (damages)
2) Restitutionary damages (legal and equitable)
3) Equitable damages

Front 12

What are the requirements for compensatory damages?

Back 12

1) Actual injury
2) Foreseeability (proximate causation)
3) Certainty
4) Mitigation

Front 13

What is the “all or nothing” rule for compensatory damages?

Back 13

For future damages, P must show that they are more likely to happen than not.

Front 14

What is the mitigation rule for damages?

Back 14

P has a duty to take REASONABLE steps to mitigate his damages.

Front 15

What are the main differences between special and general compensatory damages?

Back 15

1) Special damages refer to economic losses like medical expenses or lost wages. The basic certainty rules DO apply.
2) General damages refer to non-economic losses like pain and suffering. The basic certainty rules do NOT apply.

Front 16

What are the calculation rules for compensatory damages?

Back 16

The award must be a single lump sum payment, discounted for present value, without inflation taken into account.

Front 17

What are the punitive damages rules?

Back 17

1) P must have first been awarded other damages
2) D’s fault must have been greater than negligence
3) Generally, punitive damages may not exceed ten times the actual damages

Front 18

What is the basic concept of restitutionary damages?

Back 18

These remedies are based on the theory that defendant should not be UNJUSTLY ENRICHED.

Front 19

What is the main difference between compensatory and restitutionary damages?

Back 19

Compensatory damages focus on the injury to the plaintiff. Restitutionary damages focus on the benefit to the defendant.

Front 20

May a plaintiff be awarded both compensatory and restitutionary damages?

Back 20

NO! Talk about both and give the plaintiff the largest sum.

Front 21

What is the test for replevin?

Back 21

Must establish that:
1) P has a right to possession
2) There is a wrongful withholding by D

Front 22

What are the timing of recovery rules for replevin?

Back 22

Plaintiff can recover the chattel BEFORE the trial. Note:
1) P must post a bond, and
2) D can defeat an immediate recovery by posting a re-delivery bond

Front 23

What is the test for ejectment?

Back 23

Must establish that:
1) P has the right to possession
2) There is a wrongful withholding by D

Front 24

What are the equitable resitutionary remedies?

Back 24

1) Constructive trust
2) Equitable lien

Front 25

When should you use an equitable lien instead of a constructive trust?

Back 25

1) When the FMV of the property is less now than when taken. P also gets a deficiency judgment for the difference, OR
2) When D’s property cannot be traced solely to P’s property (e.g. D used P’s money to remodel his house).

Front 26

What is the common requirement for both constructive trusts and equitable liens?

Back 26

There must be improperly acquired property to which D has TITLE.

Front 27

What are the rules for equitable restitutionary remedies?

Back 27

1) There must be inadequate legal remedies (e.g. D is insolvent or property is unique)
2) Tracing is allowed
3) BFPs prevail over plaintiff
4) P will prevail over unsecured creditors

Front 28

What results from a constructive trust?

Back 28

D serves as a trustee and must RETURN the property.

Front 29

What results from an equitable lien?

Back 29

The property is subject to an immediate court-directed sale with proceeds to P. The court then issues a deficiency judgment for the difference between the sale price and the FMV of the property at the time it was taken.

Front 30

What is the test for preliminary injunctions?

Back 30

P must establish that:
1) There is an irreparable injury (NOW, while waiting for a full trial on the merits)
Note: Irreparable injury to P weighed against any hardship on D if granted
2) There is a likelihood of success on the merits
Note: P must post a bond to reimburse D if the injunction harms D and P does not prevail on the merits.

Front 31

What is the test for a temporary restraining order?

Back 31

P must establish that:
1) Irreparable injury
2) Likelihood of success on the merits.
Note: TRO’s can issue ex parte (notice not required)

Front 32

Must notice be given to the other party before a TRO is issued?

Back 32

No. However, if there is an opportunity to give D notice and a chance to appear, a good faith effort must be made to do so.

Front 33

When is restitution available for encroachment?

Back 33

Never!

Front 34

When is restitution available for nuisance?

Back 34

Never!

Front 35

What are the torts for which restitution is never available (even where D has been unjustly enriched)?

Back 35

1) Encroachment
2) Nuisance

Front 36

What is the favorite fact pattern for consequential damages?

Back 36

The diminution of the non-breaching party’s reputation.

Front 37

When are punitive damages available for breach of contract?

Back 37

Never!

Front 38

What is the test for the validity of a liquidated damages provision?

Back 38

1) Damages are very difficult to ascertain at the time of formation
2) This was a reasonable forecast of what they would be

Front 39

What result if a liquidated damages clause is valid? Invalid?

Back 39

1) Valid: ONLY liquidated damages (does not preclude specific performance)
2) Invalid: ONLY actual damages

Front 40

What result if a liquidated damages clause provides for either actual damages or liquidated damages?

Back 40

Invalid clause.

Front 41

What is the basic scenario where restitutionary damages are available in contract?

Back 41

Where the contract fails after plaintiff has rendered performance. The contract will fail because:
1) The contract is unenforceable, OR
2) The contract is breached

Front 42

What is the measure of restitutionary damages in contract?

Back 42

The value of the benefit conferred (even if D doesn’t enjoy the benefits).
Note: Plaintiff can recover even if the value of the services is greater than the contract rate.

Front 43

Can P recover the actual property conferred via restitutionary damages in contract?

Back 43

ONLY if:
1) Property is unique, OR
2) D is insolvent

Front 44

Can a breaching party recover restitutionary damages?

Back 44

1) Traditional view: No
2) Modern view: Yes, but cannot be greater than the contract rate and is reduced by any damages suffered by D as a result of the breach.

Front 45

What is required for specific performance of a contract?

Back 45

1) Contract is valid (contract terms must be more definite than for money damages)
2) Contract conditions of plaintiff must be satisfied or excused
3) Inadequate legal remedy alternative
4) Mutuality of remedy (could D have brought?)
5) Feasibility of enforcement (e.g. not available for personal services contracts)
6) Defenses (none)
Note: Cha Cha Is My Favorite Dance

Front 46

Is specific performance available where the seller cannot fully deliver the agreed upon consideration?

Back 46

1) Seller as plaintiff: Can enforce the contract, but only if defect is minor
2) Buyer as plaintiff: Can enforce, even if defect is major (but court won’t enforce if defect is extraordinarily large).
Note: You MUST note that the court will abate (reduce) the purchase price to account for the defect.

Front 47

When will specific performance be available despite the fact that P violated a time of the essence clause?

Back 47

Court will consider factors such as:
(1) Loss to the seller is small
(2) Tardiness is de minimis
(3) Waiver (seller has accepted late payments before)
(4) Buyer would suffer undue hardship
Note: EQUITY ABHORS FOREFEITURE

Front 48

When are money damages too speculative for specific performance purposes?

Back 48

1) Damages are speculative
2) D is insolvent
3) Multiple suits are necessary
4) The thing bargained for is unique (land!)

Front 49

When is specific performance available for contracts involving personal property?

Back 49

General rule: personal property is NOT unique and damages are adequate. Exceptions:
1) One of a kind/very rare
2) Personal significance to buyer
3) Circumstances make chattel unique NOW (uniqueness tested at time of litigation)

Front 50

When the mutuality of remedy analysis for specific performance?

Back 50

Specific performance generally not available to P when it would not be available to D (e.g. P is a minor). HOWEVER: The court should reject the mutuality argument if it feels secure that P will perform. Best course is for court to order SIMULTANEOUS performance.

Front 51

When is unconscionability tested?

Back 51

Time of formation.

Front 52

When is specific performance available for the sale of land involving an oral contract?

Back 52

Generally it isn’t (SOF). HOWEVER: If one has rendered valuable part performance in reliance on the contract, the SOF is satisfied and specific performance may be granted.

Front 53

When is part performance in reliance on an oral contract sufficient to satisfy the SOF?

Back 53

Any TWO of the following:
1) Payment (whole or partial)
2) Possession
3) Valuable improvements

Front 54

What is equitable conversion in the context of a land sale contract?

Back 54

UPON EXECUTION (e.g. after the contract but prior to closing) the property interests of the buyer and seller are switched. Thus,
1) Buyer has a real property interest (the specifically enforceable right to land), and
2) Seller has a personal property interest (the specifically enforceable right to the money)

Front 55

What is the test for enforcing a covenant not to compete?

Back 55

(1) The covenant must protect a legitimate interest in the person in whose favor it runs, AND
(2) The covenant must be reasonable in both its geographic and durational scope

Front 56

What is rescission?

Back 56

A remedy where the original contract is considered voidable and rescinded.

Front 57

What is the test for rescission?

Back 57

(1) Are there grounds for rescission (e.g. mistake, misrepresentation, capacity, undue influence)
(2) Are there any available defenses?
Note: Good Dog

Front 58

When is a mutual mistake grounds for rescission?

Back 58

Where the mutual mistake relates to a material fact.

Front 59

When is a unilateral mistake grounds for rescission?

Back 59

Generally it isn’t. Exception: The non-mistaken party knows or has reason to know of the mistake. Modern trend: Rescission available if mistaken party would otherwise suffer undue hardship.

Front 60

When is misrepresentation a basis for rescission?

Back 60

When P actually relied on the misrepresentation.

Front 61

May P sue for both damages and rescission?

Back 61

Yes, but ONLY if he sues for rescission first. If he sues for damages first, this is considered affirmance of the contract.
Note: P can sue for both at the same time, but he must elect the preferred remedy before judgment.

Front 62

When is reformation an available remedy?

Back 62

1) There must be a valid contract
2) There must be grounds for reformation (e.g. mistake, misrepresentation)
3) There aren’t any available defenses
Note: Very Good Dog