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50 Cards in this Set
- Front
- Back
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1. TORT REMEDIES
a. LEGAL Remedies i. DAMAGES – Based on the injury to the P [compensatory, nominal, punitive] 1. Three Types |
a. Compensatory – Place the injured party in the position he would have been in had the injury not occurred.
b. Nominal – Awarded when the plaintiff has NO actual injury in order to establish or vindicate the P's rights. c. Punitive – Damages awarded to punish the defendant (3 Rules) i. Actual Damages Prerequisite – In order to get punitive damages, P must have been awarded compensatory or nominal damages first. 1. Note: Punitive damages can also be attached to restitutionary damages for tort cases. ii. Willful, Wanton, Malicious – In a non-contract claim, P must prove by clear and convincing evidence that D engaged in conduct beyond mere negligence. iii. Due Process Concerns – Apply 3 factors to determine if the damages are grossly excessive. 1. Reprehensibility of the D’s conduct 2. Reasonable ratio – punitive to actual damages (Single digit) 3. Difference between the punitive damages and the civil statutory penalties/ fines available for similar conduct |
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1. TORT REMEDIES
a. LEGAL Remedies i. DAMAGES – Based on the injury to the P [compensatory, nominal, punitive] 2. Four Requirements |
a. Causation – Actual causation ("but for" test)
b. Foreseeablity – Proximate causation, the injury must have been foreseeable a the time of the tortious act c. Certainty – Damages cannot be speculative i. Economic Losses (Special Damages) – must be proved with sufficient certainty. (ex. medical expenses, lost earnings) 1. Past damages – have to be established with more certainty than future damages. (i.e. historical record) 2. Future damages – P must show that the damages are more likely to happen than not. ("All or nothing" rule) ii. Non-economic Losses (General Damages) – Basic certainty rules do not apply. Jury may award ANY amount it wished subject to proper instructions. (Unit of time ok, NOT golden rule) 1. Ex: pain and suffering, permanent disfigurement d. Mitigation – P cannot recover for damages that could have been reasonably avoided. i. Note – Reasonableness is judged at the time of the loss and not in hindsight. e. Attorneys Fees, Prejudgment Interest – Not recoverable absent a statute or contractual agreement |
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1. TORT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 1. LEGAL Restitutionary Remedies |
– based on the benefit to D and amount is calculated based on the value of the benefit
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1.TORT REMEDIES a.LEGAL Remedies ii.RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 1.LEGAL Restitutionary Remedies a.Unjust Enrichment |
Measured by the value of the benefit given to the D. i. Note – Must analyze unjust enrichment whenever the D retains a benefit at the P’s expense but the P must choose either compensatory damages or unjust enrichment.
ii. Punitive damages – can be attached to restitutionary damages as long as the underlying cause of action is in tort.
iii. NOT Applicable to – Encroachment or Nuisance |
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1. TORT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 1. LEGAL Restitutionary Remedies b. Replevin |
– Action for P to recover possession of specific personal property
i. Two part test 1. Right – P has the right to possession 2. Wrongful – There is a wrongful withholding by D ii. Procedure 1. Before – P Can recover chattel before trial 2. Bond – P will have to post a Bond a. D can defeat an immediate recovery by posting a Redelivery Bond (D keeps chattel until trial) 3. Sheriff – Sheriff repossesses the property for P iii. Note – Replevin is almost always coupled with damages for lost use or benefit to D during time of detention. iv. Note – May also use self help with reasonable force to recapture. |
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1. TORT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 1. LEGAL Restitutionary Remedies c. Ejectment |
Action for P to recover possession of specific real property
i. Two part test 1. Right – P has the right to possession 2. Wrongful – There is a wrongful withholding by D ii. Status of Defendant – Ejectment is available only against a D who has possession of property. iii. i.e. Adverse possessor or holdover tenant. Not a trespasser. iv. Note – Sheriff ejects D from property v. Note – Ejectment is almost always coupled with damages for lost use or benefit |
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1. TORT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 2. EQUITABLE Restitutionary Remedies (Apply when D has title to property) a. 4 Rules apply to CT and EL (Remember Equitable Defenses) |
i. Inadequate legal remedy – i.e. money damages are inadequate
1. D is insolvent OR Property is unique (CT only) ii. Tracing – Must trace D’s unjust gain into some property that the D has acquired title to. (i.e. property itself or a bank account) 1. Note – if D’s property cannot be traced solely to P’s property, only an equitable lien is available. iii. BFPs prevail over P – BFP has superior rights to P, but P may trace the proceeds of the sale into a bank account. iv. P will prevail over Unsecured Creditors 1. Note – deficiency judgments in connections with equitable liens have equal rights as unsecured creditors. |
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1. TORT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 2. EQUITABLE Restitutionary Remedies (Apply when D has title to property) b. Constructive Trusts |
– Trust imposed on improperly acquired property to which D has title. D serves as trustee and must return the property to the P
i. Note – D must have acquired title to the property as a result of the unjust gain or by use of the unjust gain. ii. Result –D must return the property into which the tracing occurred iii. Increases in Value – Apply when the property increases in value. |
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1. TORT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies – The D has been unjustly enriched at the P’s expense. 2. EQUITABLE Restitutionary Remedies (Apply when D has title to property) c. Equitable Liens |
– Lien imposed on improperly acquired property to which D has title. Property will be subject to an immediate court-directed sale. The monies received go to the P.
i. Deficiency Judgment – If the proceeds of the sale are less than the FMV of the property when it was taken, a deficiency judgment will be issued for the difference and can be used against the D's other assets. ii. Decrease in Value – Apply when the property decreases in value. |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 1. Permanent v. Preliminary injunctions |
a. Permanent Injunction is issued after a full trial on the merits
b. Preliminary Injunctions are issued pending trial on the merits |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 2. Preliminary Injunction (5 Elements) |
a. Irreparable Injury – Establish that you will incur irreparable injury while waiting for a full trial on the merits.
b. Balancing the hardships Favors Moving Party – Irreparable injury that P will suffer if temporary injunction is not granted outweighs any hardship D will suffer if a temporary injunction is granted. c. Likelihood of Success on the Merits – probability of success on the claim d. Noticed Hearing – Issued upon a noticed hearing prior to adjudication in order to maintain status quo. Only binding on those who receive actual notice of the order. e. Bond Requirement – court should impose a bond requirement on P to reimburse D if P does not win on the merits f. Purpose – provisional remedy to maintain status quo pending hearing |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 3. Temporary Restraining Order (TRO) |
a. Immediate Irreparable Injury – Establish that you will incur immediate irreparable injury while waiting for a preliminary injunction hearing.
b. Likelihood of Success on the Merits – probability of success on the claim c. Ex Parte – Notice and adversarial proceeding are not required but a good faith effort must be made to give notice and a chance to appear. d. Limited Duration – Limited to 10 days (14 in federal court) e. Purpose – short-term decree to maintain the status quo |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) a. Inadequate Legal Remedy Alternative |
i. Ejectment – Sheriff may refuse to act (i.e. encroachment)
ii. Replevin – Sheriff may not be able to recover (i.e. find or identify) or D can file a redelivery bond and destroy chattel iii. Money damages are too speculative, D is insolvent iv. Irreparable injury (land, family heirloom, chemical in lungs) v. Avoiding a multiplicity of actions (i.e. prior history of actions) |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) b. Property Right/Protectable Interest |
i. Traditional Rule – Only property right (Land, trademark, personal)
ii. Modern Rule – Any protectable interest will suffice. |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) c. Feasibility of Enforcement |
i. Negative injunction (prevent action) – No enforcement problem
ii. Mandatory injunction (perform an act) – Look at: 1. Difficulty of supervision, and 2. Concern with effectively ensuring compliance 3. Note – Injunction denied if it involves great taste, skill, or judgment, or a series of acts over a period of time. 4. Note – If out-of-state action is required a. Resident D: Injunction granted b. Non-Resident D: Injunction denied |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) d. Balancing the Hardships Favors the Moving Party |
i. Must discuss the hardship to D and the public and the benefit to P
ii. The hardship to the D or the public must be considerably greater than the benefit to the P to deny an injunction. iii. There will be NO balancing if D's conduct was willful iv. Remember to consider awarding P money damages 1. Note – Balancing of hardships is almost always a primary discussion with the tort of nuisance or trespass to land |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) e. Defenses i. Unclean Hands |
P engaged in improper conduct with regard to the subject matter of the lawsuit.
1. Note – Improper conduct must be related to the lawsuit. Look out for the "bad guy" fact pattern. |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) e. Defenses ii. Laches – |
(1) Unreasonable Delay that is (2) Prejudicial to the P
1. Laches is concerned with the effect of the passage of time not the length of the passage of time. 2. Clock starts to run when P knows of the injury 3. If laches applies and bars relief, consider giving P some money damages |
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) e. Defenses iii. Impossibility |
Impossible for D to carry out terms of injunction
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 4. Permanent Injunctive Relief (I, Put, Five, Bucks, Down) e. Defenses iv. Free Speech |
Freedom of speech prohibits injunctions against personal defamations.
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1. TORT REMEDIES
b. EQUITABLE Remedies i. INJUNCTIVE Relief – D is ordered to do or refrain from doing something 5. Miscellaneous Injunctive Relief Issues |
a. Coupled With Damages – Injunctive relief is almost always coupled with damages for injuries incurred in the time prior to obtaining the injunction
b. Enjoin a Criminal Prosecution – No injunction will be issued unless irreparable injury to the P will result c. Enjoin a Crime – Equity does not have the power to enjoin crimes or enforce criminal penalties. (Exception – Public Nuisance) d. Who is bound by an Injunction – Parties, Employees and agents acting with notice, or Third persons acting with notice. e. Erroneous Injunction – An erroneous injunction must be obeyed until modified or dissolved. f. Contempt i. Civil Contempt (to coerce) 1. Money (fine) 2. Imprisonment – If D can get out by agreeing to comply ii. Criminal Contempt (to punish) 1. Money (fine) 2. Imprisonment: Cannot get out of prison until time served 3. Note: Constitutional safeguards apply to criminal contempt |
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2. CONTRACT REMEDIES
a. LEGAL Remedies i. DAMAGES - Put P in the position he would have been in had the K been fully performed. 1. Expectancy Damages |
– Damages that inherently flow from the wrong
a. Four requirements i. Causation ii. Foreseeablity (at time the K was entered into) iii. Certainty (i.e. NOT future profits of a new business) iv. Mitigation |
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2. CONTRACT REMEDIES
a. LEGAL Remedies i. DAMAGES - Put P in the position he would have been in had the K been fully performed. 2. Consequential Damages |
All other related damages foreseeable at the time of formation. (i.e. reputation damages, lost profits)
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2. CONTRACT REMEDIES
a. LEGAL Remedies i. DAMAGES - Put P in the position he would have been in had the K been fully performed. 3. Incidental Damages |
– Reasonable expenses incurred by the P as a result of the other party's breach
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2. CONTRACT REMEDIES
a. LEGAL Remedies i. DAMAGES - Put P in the position he would have been in had the K been fully performed. 4. Nominal Damages |
– Allowed
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2. CONTRACT REMEDIES
a. LEGAL Remedies i. DAMAGES - Put P in the position he would have been in had the K been fully performed. 5. Punitive Damages |
– Not allowed
a. Note – If D's conduct is willful, try to characterize it as a tort case (Fraud) |
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2. CONTRACT REMEDIES
a. LEGAL Remedies i. DAMAGES - Put P in the position he would have been in had the K been fully performed. 6. Liquidated Damages Clause |
Parties may contract for damages if:
a. Damages are difficult to ascertain at the time of contract formation b. The amount specified was a reasonable estimate of anticipated injury i. i.e. Damages cannot act as a penalty. c. Results i. If valid – Only liquidated damages amount available ii. If invalid – Only actual damages available d. Note – If a clause provides that one can get either actual or liquidated damages it is invalid. e. Note – A valid liquidated damages clause will NOT prevent a P from getting specific performance. |
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2. CONTRACT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies - Measured by the value of the benefit given to D. 1. Legal Restitutionary Remedies a. Quasi Contract |
(Unjust Enrichment) – P can get restitutionary damages for property or money conveyed, or services rendered to D whether or not D actually used the benefit.
i. Specific Restitution – Can get property back if it is unique or if D is Insolvent unless the P is in breach of K. |
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2. CONTRACT REMEDIES
a. LEGAL Remedies ii. RESTITUTIONARY Remedies - Measured by the value of the benefit given to D. 2. Bar Fact Patterns |
The contract fails after plaintiff has rendered part performance on the contract. (i.e. Partial or incomplete performance)
a. Unenforceable Contracts – mistake, lack of capacity, SOF, illegality i. Can recover in quasi contract and specific restitution. ii. Note – Value of the recovery may be greater than the contract rate b. Breached Contracts i. Plaintiff as "Non-Breaching" party 1. Can recover in quasi contract and specific restitution. 2. Note – Value of the recovery may be greater than the contract rate. 3. P can get property back if it is unique or D is insolvent ii. Plaintiff as "Breaching" party 1. Traditional view – No recovery 2. Modern view – Recovery is allowed but reduced by any damages suffered by the D and cannot be greater than the contract rate. a. Specific Restitution not allowed |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 1. Contract is Valid |
– P must be able to show K is valid
a. Note – In order to obtain specific performance P must be able to show the contract terms with MORE certainty and definiteness than would be the case in an action for money damages at law. |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 2. Contract Conditions of P must be Satisfied |
– P must be able to show his contract conditions have been fulfilled (i.e. already performed, ready and able to perform, or excused from performing)
a. Deficiencies Fact Pattern – Seller cannot deliver agreed upon consideration. i. Seller as P 1. CAN enforce the K if the defect is minor 2. CanNOT enforce the K if the defect is major a. Note – The seller can cure the defect before or at closing ii. Buyer as P 1. CAN enforce the K if the defect is minor OR major 2. CanNOT enforce the K if the defect is extraordinarily large. Court will simply refuse to act in the case |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 2. Contract Conditions of P must be Satisfied iii. Bar Exam Imperative |
If you decide that specific performance should be granted even though a defect exists, you MUST note that the court will ABATE (lower) the purchase price to account for the defect.
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 2. Contract Conditions of P must be Satisfied b. Express Time of the Essence Clause with Forfeiture Provision i. Bar Fact Pattern: |
1. There will be a land sales contract with an express time of the essence clause
2. This clause will contain a forfeiture provision. 3. There will have been partial performance which is now potentially subject to forfeiture 4. Buyer will have made a late payment 5. Buyer will bring a lawsuit for specific performance. ii. Equity Maxim – Equity Abhors Forfeitures iii. Factors Court will use to Avoid Forfeiture 1. Loss to seller is small 2. Tardiness is de minimis (Minimal) 3. Waiver (seller accepted previous late payments) 4. Buyer would suffer undue hardship iv. Note – Under the modern view courts will give P restitutionary relief IF specific performance is not granted v. Note – This is for partially performed K. If the contract is executory (no performance by buyer) then the time is of the essence clause will be strictly enforced |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 3. Inadequate Legal Remedy |
a. Damages are speculative, D is insolvent
b. Avoiding a multiplicity of actions (i.e. prior history of actions) c. Property is Unique i. Land is always unique ii. Personal Property is not unique. 1. Exceptions: personal property is unique if it is one of a kind, very rare, has a personal significance to buyer, or if circumstances make chattel unique. 2. Note – Uniqueness is tested at the time of litigation 3. Special Seller's Rule – Sellers of land can get specific performance even though all they have coming is money. |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 4. Mutuality of Remedy (3 Part Rule) |
a. Traditionally specific performance was granted only if D could have obtained like relief from the P had the P breached.
b. Modernly courts will reject the mutuality of remedy argument if it feels secure that the P will perform. c. Mutuality of Performance – In granting specific performance courts will require simultaneous performance. |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 5. Feasibility of Enforcement |
a. Personal Services – will NOT be enforced because of enforcement problems and the prohibition against involuntary servitude.
b. Covenant Not to Compete – Enforceable if: i. The services are unique, AND ii. The Scope (geographic and duration) is reasonable. |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 6. Defenses a. Equitable defenses |
i. Laches / Unclean Hands
ii. Unconscionability – Must have procedural and substantive. 1. Tested at the time of contract formation |
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2. CONTRACT REMEDIES
b. EQUITABLE Remedies i. Specific Performance (Cha, Cha, Is, My, Favorite, Dance) 6. Defenses b. Contract defenses |
i. Mistake
ii. Misrepresentation iii. Statute of Frauds 1. Exception – Part Performance 2. How to spot: a. Contract must involve land (land sales K or testamentary disposition of land) b. K will have been oral c. D now raises SOF as a defense to specific performance 3. RULE: If one has rendered (1) Valuable part performance, (2) in reliance on K 4. Two of the following must be met (land sales) a. Payment (whole or part) b. Possession c. Valuable Improvements d. Valuable Services (modern trend) |
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2. CONTRACT REMEDIES
c. RECISSION – Original K is considered voidable and rescinded. (Good, Dog) i. Grounds for rescission |
1. (1) Mistake, (2) Misrepresentation, (3) Coercion, (4) Undue influence, (5) Lack of capacity, (6) Failure of consideration, (7) Illegality, (8) Duress
a. All relate to formation (i.e. K is never validly formed) 2. Mistake a. Mutual mistake i. Material fact – rescission granted ii. Collateral fact (going to quality, desirability, or fitness of property for a particular purpose) – rescission denied b. Unilateral mistake – Rescission denied i. Exception – The non-mistaken party knows OR should know of the mistake. (i.e. contractor receiving a drastically lower bid) ii. Modern Trend Exception – Mistaken party would suffer undue hardship if there is no rescission 3. Misrepresentation – Rescission granted a. Note – P must show that they have actually relied upon misrepresentation |
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2. CONTRACT REMEDIES
c. RECISSION – Original K is considered voidable and rescinded. (Good, Dog) ii. Defenses |
– Determine if there are valid defenses
1. Unclean Hands / Laches 2. Note – Negligence of P is NOT a good defense |
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2. CONTRACT REMEDIES
c. RECISSION – Original K is considered voidable and rescinded. (Good, Dog) iii. Two Rescission Notes |
1. Election of Remedies – If both rescission and damages remedies are available, P should sue for both at the same time. If P sues for damages first, this is regarded as an affirmance of the K and rescission is NO longer available.
a. Note - must elect the preferred remedy before judgment 2. Availability of Restitution – If P, who is entitled to rescission, has previously rendered performance on the K, he can get compensated for it or get the property back via restitution. |
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2. CONTRACT REMEDIES
d. REFORMATION – Changes the written agreement to conform with the parties' original understanding. (Very, Good, Dog) |
i. Valid K – Determine if there is a valid contract.
ii. Grounds for reformation 1. Mistake a. Mutual mistake – Reformation granted b. Unilateral mistake – Reformation denied i. Exception – where the non-mistaken party KNOWS of the mistake (fraud or inequitable conduct) 1. Note – Unlike the rescission exception, the non-mistaken party must actually know of the mistake. (Not should have known) 2. Misrepresentation – Reformation granted a. This is available for BOTH innocent and intentional misrepresentations. i. Policy – Rewriting reflects the expressed intent of the parties iii. Defenses – Determine if there are valid Defenses 1. Unclean Hands / Laches 2. BFP – Reformation is not allowed where it would adversely affect the rights of a subsequent BFP 3. NON Defenses to Reformation a. Negligence of P b. Statute of Frauds c. Parol Evidence Rule |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
1. Personal Property Torts |
a. Destroyed Property
i. Compensatory Damages b. Damaged Property i. Compensatory Damages c. Dispossession i. Compensatory Damages ii. Restitutionary Damages – (If D benefits) iii. Replevin iv. Mandatory Injunction – (If chattel is unique and damages and replevin won’t work) v. Constructive Trust / Equitable Lien – (If D is insolvent or if tracing facts are involved) vi. Self Help – Reasonable force to recapture chattel |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
2. Real Property Torts |
a. Simple Trespass
i. Nominal Damages ii. Restitutionary Damages iii. Injunction – (Avoiding multiplicity of actions) b. Destruction / Damage of Real Property i. Compensatory Damages ii. Injunction c. Dispossession i. Compensatory Damages ii. Restitutionary Damages iii. Ejectment – (Since it is available, NO injunction) iv. Constructive Trust / Equitable Lien d. Encroachment i. Compensatory Damages ii. Injunction – (Emphasize balancing the hardships) iii. *NO Restitution e. Nuisance i. Compensatory Damages ii. Injunction – (Emphasize balancing the hardships) iii. *NO Restitution |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
3. Personal Injury Torts |
a. Compensatory Damages
i. Economic Loss / Special Damages – Certainty rules apply 1. i.e. lost wages ii. Non-Economic Loss / General Damages – Certainty rules do NOT apply 1. i.e. pain and suffering b. Injunction – (Only against prospective, intentional, tortious conduct) |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
4. Fraud |
a. Damages
b. Constructive Trust / Equitable Lien c. Punitive Damages d. (*May also be analyzed as a contracts case) |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
5. Personal Property Sales Contracts |
a. Compensatory Damages
i. Sellers Breach – (Does not convey, or delivers damaged goods) ii. Buyers Breach – (Does not Pay) b. Restitution – (Unenforceable breached contracts) c. Specific Performance – Personal property must be unique d. Rescission e. Reformation |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
6. Land Sale Contracts |
a. Compensatory Damages
i. Sellers Breach – (Does not convey) ii. Buyers Breach – (Does not Pay) b. Restitution – (Unenforceable breached contracts) c. Specific Performance – Land is unique i. Both buyer and seller can get specific performance ii. Bar Favorites – Deficiencies / Time is of the essence clause / Equitable Conversion d. Rescission e. Reformation |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
7. Construction Contracts |
a. Compensatory Damages
i. Owners Breach – (Does not Pay) ii. Builders Breach – (Does not complete, or defective completion) b. Restitution – (Only builder for work done unless owner pre-paid) c. Specific Performance – Only owner but very difficult because of enforcement problems |
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APPLICATION OF REMEDIES TO PARTICULAR CAUSES OF ACTION
8. Personal Services Contracts |
a. Compensatory Damages
i. Employers Breach – (Wrongful Termination) ii. Employees Breach – (Wrongfully Quits) b. Restitution – (Only employee for work done unless employer pre-paid) c. Specific Performance i. NO – employment contracts ii. YES – Valid covenant not to compete |
