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70 Cards in this Set
- Front
- Back
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When is equity appropriate?
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Remedy at law is inadequate:
1. Damages cannot make plaintiff whole (matter of litigation unique) 2. Damages are speculative and uncertain 3. Multiple suits must be brought for relief at law (i.e., repeated trespass) 4. Defendant is insolvent 5. Irreparable harm and P cannot be fully compensated by |
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When will equity not grant relief, even if there is no remedy at law?
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When it is impracticable:
1. Order performance over extended periods requiring protracted supervision 2. Interferes with free speech (slander and libel injunctions) 3. Compel one to render personal services 4. Interfere with administration of Criminal Law |
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What jurisdiction is available for equity?
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In personam
In Rem Quasi In Rem |
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In what cases may equity act in rem or quasi in rem?
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1. Establishing title to realty by contract or A.P.
2. Establishing title to personalty by contract or prescription 3. Partition 4. Attachment 5. Foreclosure 6. Divorce |
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What does the term chancellor mean?
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Term for judge in equity.
Equity is DISCRETIONARY |
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Under DPC, proper exercise of in rem jurisdiction requires:
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1. The relevant res be in VA
2. Nonresident defendant be notified NOTE: In divorce cases in rem, the res is the marriage bond Quasi in rem: Court cannot force nonresident to act (i.e., convey title) but may divest |
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What is required for injunctive relief?
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Balancing of factors and policies (balancing of the equities)
1. P has some legally recognized right infringed (or about to be infringed by defendant; 2. No adequate legal remedy 3. Injunction is feasible, practicable, and effective to vindicate right 4. Hardship to defendant, where relevant, does not greatly outweigh the benefit of plaintiff 5. Injunction would not adversely affect public interest 6. No equitable defense |
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What is standard of review for equitable relief?
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Abuse of discretion
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What types of temporary injunctions are available?
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1. Ex Parte Temporary Relief (often called restraining order)
2. Temporary Preliminary Injunction |
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Describe the Grant, Duration, and Jurisdiction concerns of Ex Parte and Temporary Injunctions?
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Grant: Notice is given to adverse party. Ex parte only if it appears immediate injury would occur prior to opposing party's opportunity to be heard.
Duration: Limited to time fixed in order and usually issued only upon posting of security bond Jurisdiction: Any court having jurisdiction may award temporary relief even is not proper venue for permanent injunction on its merits. Any judge of the Supreme Court may award, enlarge, or reinstate a TI whenever a judge of an inferior court has refused, dissolved, or refused to enlarge |
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What are the considerations in awarding temporary relief?
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1. Irreparable Injury (balancing hardships). Part seeking injunction must show:
a) injury would be irreparable b) outweighs harm to defendant c) prayer for permanent injunction would take too long to afford relief 2. Likelihood of Succeeding on the Merits (where both sides will suffer irreparable harm, plaintiff's proof must be particularly persuasive) 3. Preservation of Status Quo 4. Consideration of Public Policy |
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Under what conditions will a permanent injunction be granted?
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1. Notice to adverse party
2. Upon posting of sufficient security (except when not required by the court) 3. Full hearing on the merits (may be raised based on depositions, but never on affidavits alone) |
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What is the proper venue for a permanent injunction hearing?
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Pure Complaint
MUST COMPLETE (p. 8) |
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Whom does equity bind?
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a) all parties
b) their agents c) those acting in concert, after receipt of actual notice |
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How long does an injunction last?
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Remains in full force and effect until vacated or modified by court, or set aside on appeal.
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How is an injunction typically enforced?
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"Show cause" contempt citation
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What are some examples of cases in which legal remedies are inadequate?
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Waste (destructive or permissive)
Nuisance |
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When will private nuisance be enjoined?
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1. threatens irreparable loss
2. substantial 3. balance of hardship not in favor of other party or public |
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When can an individual seek to enjoin public nuisance?
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1. Violates a specific, particularized right
2. The injury is serious 3. Private inconvenience outweighs public benefit from maintaining status quo. |
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Equity can order _______ _______ to see if nuisance can be diminished.
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scientific tests
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What relief can equity provide for nuisance.
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Abatement
Partial abatement (limit scope) Give damages for past and future harm |
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When will an injunction against trespass to land or disturbance of easement be granted?
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Irreparable injury caused by:
a) repeated violations that would require successive lawsuits b) continuous trespasses c) Harm is ordinary but trespasser is insolvent and judgment proof |
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What type of relief will be loss of possession of land?
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NOT EQUITABLE RELIEF
Legal remedies (unlawful detainer or ejectment) are both adequate remedies at law EXCEPTION Injunctions may be appropriate when a structure encroaches |
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What type of relief will be granted for violation of equitable restrictions and servitudes?
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Equity (duh)
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Make notes for 16-17
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Notes for 16-17
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When may a judgment be enjoined?
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Extrinsic fraud:
bribing judge or jury, employing lawyer to illegally influence court, corruption at heart of judicial process Intrinsic Fraud: Forgery, perjury, etc may not be enjoined |
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On what policy grounds might equity be denied?
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1. Will not protect personal rights
2. Will not interfere with free speech 3. Will not coerce affirmative acts abroad 4. Will not interfere with the criminal justice system HOWEVER: personal violations of civil rights can be enjoined in equity |
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How is equity implicated in defamation?
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Generally, equity doesn't care. Reputation is personal, not property.
EXCEPTION: Private individuals (not public figures) may enjoin if publication violates contract or breach of trust |
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How is equity implicated in invasion of privacy?
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Generally, no injunction.
Excpetion: Virginia Privacy Statute: Commercial use for trade or advertising of a name or picture of a person can be enjoined (and damages) unless prior written consent was obtained. (NOT NEWS STORY) |
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Acts in other states (or countries)
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Equity will not enjoin, unless the orders can be obeyed without leaving VA.
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How is equity implicated in criminal prosecutions?
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Generally, equity will not act act in pending criminal prosecutions.
HOWEVER, if a threatened criminal prosecution where facts have already decided for plaintiff or because statute is unconstitutional (must show irreparable harm) |
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When will relative hardship of defendant not be taken into account?
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Defendant has acted willfully or oppressively, and
Plaintiff has not disqualified himself (unclean hands) |
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What disqualifies a plaintiff from seeking equitable relief?
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1) Aquienscence
2) Estoppel 3) Extortion 4) Laches (sitting on rights, to the other party's detriment, before you act) 5) Unclean hands (discussed later) |
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When is relative hardship taken into account?
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Not willful of oppressive, i.e.,
surveyor's mistake |
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Who has burden of proof on laches?
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On the party asserting the defense
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What are excuses for plaintiff's delay?
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1) Defendant's concealment, fraud, or inequitable conduct
2) Reasonable lack of awareness of facts giving rise to relief 3) Plaintiff waiting on SCOTUS to decide a case |
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Those who seek equity must come with _____ _____. Describe the ____ ______ doctrine.
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Clean hands
a) Fraud b) Duress c) Undue influence d) Unethical practices e) Unconscionable abuse of superior bargaining power f) Gross inadequacy of the consideration Unclean Hands is only a defense. |
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What must a plaintiff show to be granted specific performance?
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a) valid contract that is not unfair, unjust or unconscionable
b) satisfaction of plaintiff's condition under the contract c) no adequate remedy at law d) practicable equitable remedy e) mutuality of performance f) no equitable defenses e) mutuality of performance |
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What are the elements of a valid contract that can be enforced in equity.
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1) Sufficient and adequate consideration--grossly inadequate price may lead to denial of equitable remedy
2) Definiteness--court must be able to hammer out obligations 3) Description of land--must objectively locate land by extrinsic evidence |
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How does delay in performance factor in to specific performance?
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MUST include "time is of the essense" clause
Defaulting party in "time is of the essence" cannot seek specific performance, but absent that language, it is only a minor breach |
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When will "time is of the essence" clause not be strictly enforced?
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a) Enforcement would bring about a major forfeiture--i.e., improvement to land by lessee, or minor delays in installment K
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Can "TIOTE" clauses be waived?
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Yes.
a) Seller excuses several late payment, cannot sue for lateness of payment. (K law) b) Neither party ready to perform--can substitute reasonable time c) acceptance of interest (in lieu of principal) |
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Can equity order partial specific performance?
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Yes. Partial specific performance AND abatement (damages) possible. Tricky, because it is equity AND damages.
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Can buyer take less than contract was to convey?
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Yes, if it is a defect in size (not quality) of estate, and defect is not so large as to basically make it a suit for damages.
E.G.--K says 1000 acres, seller only has 850. Buyer can accept with abatement. BUT 200 acres, no specific performance (abatement so large as to be a suit for damages) |
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Can seller seek S.P. for a smaller estate?
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Yes, if:
1) willing to accept abatement 2) not acted fraudulantly 3) deficiency is very, very minor |
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What factors show that a remedy of law is inadequate, and SP is required?
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1) subject matter of contract is unique
2) defendant is insolvent 3) loss is so speculative that damages are nominal 4) legal procedure is cumbersome and requires successive suits |
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How does liquidated damages clause impact equitable relief?
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Equitable relief might still be possible, but will be barred with a clear showing that parties intended sum of money be complete remedy.
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When is chattel subject to SP?
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Generally no SP, unless
1) unique (antique or heirloom) 2) difficult to procure on the market Under UCC, uniqueness is a very liberal test. NOTE: K for all the farmer's supply of milk--milk is not unique, but the continuous supply is. |
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When can a K to manufacture unique goods be subject to SP?
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1) Buyer has special need
2) Manufacturer has monopoly |
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When are covenants not to compete valid?
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1) ancillary to a partnership agreement, sale of business, or employment contract involving unique skill
2) necessary to protect interest of parties--reasonable in terms of geographic reach, time, and public policy impact Note: If employer terminates covenantee in breach of contract, SP not required. |
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Will VA courts modify not-to-compete clauses that are invalid?
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NO. No "blue pencil" rule. Invalid is invalid.
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Can a contract that provides no objective standard be enforced in equity?
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NO.
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Are Ks for personal services enforcable in equity? Why?
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No.
a) damages are adequate b) enforcement is basically unconstitutional coercion and involuntary servitude c) would require supervision d) who is going to gauge quality of services? |
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Why are contracts to make unsecured loans unenforcable in equity?
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1) damages are adequate
2) debtor is a credit risk |
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What three phrases must I write on every SP question?
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Mutuality of obligation
Mutuality of remedy Mutuality of performance |
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What is mutuality of obligation?
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All bi-lateral contracts require that the promise on both sides be definite and non-illusory, and involve a detriment to the respective promisors
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What is mutuality of remedy?
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SP is denied if, at the time of making of K, SP would be denied if roles were reversed.
IMPORTANT!! I.e., personal services in exchange for conveyance of land (personal services cannot be SP enforced) |
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What is mutuality of performance?
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SP can be enforced if, at the time of suit, the other side has received performance or can obtain performance simultaneously.
Equity will not force SP if it can't guarantee other side will receive performance. |
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What is the maxim which underlies equitable conversion?
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Equity regards as done that which ought to be done.
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How does equitable conversion operate?
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In a valid K,
a) buyer is equitable owner of property to be bought, and seller is legal owner (in trust) b) seller is equitable owner of money, and buyer is legal owner (in trust) |
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What happens on death of buyer in regard to equitable conversion?
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Interest vests in buyer's heirs, and duty to pay purchase price falls on personal representative.
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What happens on death of seller in regard to equitable conversion?
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Interest in money vests in heirs, right to receive money falls to personal representative?
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How does Virginia expand equitable conversion?
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By statute, personal representatives are authorized to exercise deeds in performance of Ks signed by decedents during their lifetime.
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What is reformation?
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An equitable remedy, granted upon CLEAR AND CONVINCING EVIDENCE, that:
a) there is a written instrument b) mutual mistake, or fraud by the other part, c) fails to reflect the parties' true agreement Reformation is an equitable remedy in which a court modifies or revises a contract, deed, or other written instrument to make it conform to what the parties understood or agreed to. |
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What is standard of proof for reformation?
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CLEAR AND CONVINCING EVIDENCE
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When can a unilateral mistake lead to reformation?
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1) defendant knows that the writing does not reflect the agreement and the plaintiff does not know
2) defendant had fundamentally drawn up a writing that fails to reflect the agreement 3) Mere failure to read does NOT deny reformation |
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What is the difference between recission and cancellation?
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Rescission abrogates the contract and is followed by action for damages.
Cancellation in equity is ordered by court. |
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What are grounds for rescission?
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a) fraud
b) innocent misrepresentation c) mutual mistake |
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What is restitution in equity?
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Avoid unjust enrichment. Quantum meruit
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What is a constructive trust?
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"Fiction" created by court--shifts title to victim in order to relieve culprit of illegal gain.
E.G.--theft of $25K, parlayed into $100K. Victim gets $100K (thief was "trustee" of the $25K) |
