Remedies

Front 1

Tort Analysis

Back 1

Legal remedies, Restitutionary remedies (legal/equitable), Equitable remedies

Front 2

Legal remedies for tort

Back 2

Monetary compensatory, nominal, punitive; restitutionary legal (monetary, replevin, ejectment). No contempt for noncompliance

Front 3

Tort - Monetary compensatory damages

Back 3

Purpose: compensate P to return to pre-tort condition. Causation, foreseeability, reasonable certainty (economic damages only - cannot be speculative - historical record helps; future: all or nothing rule - more likely than not; certainty rule doesn't apply to non-economic losses), unavoidable (mitigation); judgment single-lump sum, discounted to present value, inflation not taken into account

Front 4

Tort - Nominal damages

Back 4

Nominal amount of money available when no actual damages can be proved.

Front 5

Tort - Punitive damages

Back 5

Punish willful, wanton or malicious conduct; and deter. Single digit multiple of actual/nominal damages to punitive. D’s wealth is a factor. Can be added to compensatory and restitutionary damages

Front 6

Tort - Restitutionary damages purpose

Back 6

Prevent unjust enrichment of D, even if no injury to P.

Front 7

Tort - Monetary restitution damages

Back 7

Based on value of benefit to D. Can’t get both restitution and compensatory damages – evaluate both and elect.

Front 8

Tort - Replevin

Back 8

Recovery of specific personal property - nearly always coupled with damages. P must have right to possession, must be a wrongful withholding by D. Prelim hearing; P must post bond; D can defeat w/ a redelivery bond. Sheriff ejects

Front 9

Tort - Ejectment

Back 9

Remove trespassing D from land – recover specific real property. P must have a right to possession, must be a wrongful withholding by D. Coupled w/damages for loss of use. Sheriff ejects.

Front 10

Tort - Can P receive both compensatory and restitutionary damages (money damages)?

Back 10

NO

Front 11

Tort - Do holdover tenant fact patterns support punitives?

Back 11

NO

Front 12

Tort - Equitable remedies

Back 12

Restitutionary (constructive trust, equitable lien); preliminary or permanent injunction

Front 13

Tort - Defenses to equitable remedies

Back 13

Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.

Front 14

Tort - When to use equitable

Back 14

Use if legal restitution inadequate if D can keep property by posting bond, or if sheriff can’t find property.

Front 15

Tort - How to decide between constructive trust/equitable lien?

Back 15

If property goes up in value (or is unique), use constructive trust. If decreases in value, use equitable lien.

Front 16

Tort - Constructive trust

Back 16

Court-imposed obligation on D to convey specific property which D has title to P. $ if traceable. Often, insolvent D. BFP > P > unsecured creditors.

Front 17

Tort - Equitable lien

Back 17

Court-imposed security interest in specific property owned by D. Property subject to immediate sale, $ to P, + deficiency judgment (P becomes unsecured creditor). BFP wins. Often, insolvent D.

Front 18

Tort - Injunction

Back 18

Negative (refrain from doing something) or mandatory order. Punishment is contempt (civil - money, imprisonment but D holds keys; criminal - money, imprisonment for set time, constitutional protections apply.)

Front 19

Tort - Preliminary injunction

Back 19

Irreparable injury + likelihood of success (probability, P must post bond);

Front 20

Tort - Permanent injunction

Back 20

I put five bucks down. Inadequate legal remedy (replevin - sheriff, redelivery bond; ejectment - sheriff, $ - speculative, insolvent, irreparable - unique property, multiplicity of actions); property right (CL land, ML personal); feasible (enforcement prob. only on mandatory injunctions); balancing of hardships (benefit to P v. hardship to D. - must be gross disparity, no balancing if willful D, if balance give P $ in lieu of injunction, consider public hardship); defenses (unclean hands - P's bad acts related to lawsuit; Laches - clock starts when P learns, unreasonable & prejudicial delay cuts off relief, consider giving P $; impossibility; free speech - deny injunction in defamation, false light, private fact)

Front 21

Tort - TRO

Back 21

Same test as for prelim injunction; ex parte proceeding (notice/adversarial proceeding NOT required); not > 10 days

Front 22

Tort - Act involves application of great taste, skill, judgment. Injunction is…

Back 22

denied - not feasible for judge to determine whether requisite amount of taste, etc. is used.

Front 23

Tort - A series of acts over a period of time. Injunction is…

Back 23

denied, unless P's case is otherwise great.

Front 24

Tort - An out-of-state act is required. Injunction is…

Back 24

If D is a resident, injunction is granted (because court can monitor). If D is nonresident, injunction denied.

Front 25

Tort - Equity will ________ enjoin crimes, but check to see if________.

Back 25

Not… the crimes can be recharacterize as torts.

Front 26

Tort - Who will be bound by injunction?

Back 26

Parties; employees & agents acting w/ notice; 3d persons w/ notice

Front 27

Tort - Erroneous injunction arises when __________; it _____ be obeyed; one must have it __________ or ___________.

Back 27

facts or law change… must … modified or dissolved

Front 28

Contract Analysis

Back 28

Legal remedies (damages); Restitutionary remedies (legal - restitutionary damages, replevin, ejectment, equitable - constructive trusts, equitable liens); Equitable remedies (specific performance, rescission, reformation). P has duty to reasonably mitigate.

Front 29

Contract - expectation damages - purpose

Back 29

Benefit P expected to get out of the K.

Front 30

Contract - expectation damages for K not yet started

Back 30

K price – cost of performance (lost profits)

Front 31

Contract - expectation damages for partially performed

Back 31

K price – costs saved (promisee’s breach), or cost of completion – payments due (promisor’s breach)

Front 32

Contract - expectation damages for fully performed

Back 32

K price

Front 33

Contract - expectation damages for defect

Back 33

Diminution in value or cost of repairs

Front 34

Contract - Consequential

Back 34

Special damages in addition to expectation. Must be foreseeable at time K was entered into. Reputation fact pattern

Front 35

Contract - Liquidated

Back 35

Specified in K. Actual $ must be difficult to calculate, $ must be reasonable approximation. No penalty. If valid, no compensatory damages (but maybe specific performance); if invalid, use compensatory damages; K can't give choice of liquidated or actual.

Front 36

If contract D's conduct is willful, see if you can characterize as a ________ case to get _______.

Back 36

tort… punitive damages

Front 37

Contract - Restitution comes up with:

Back 37

Unjust enrichment - quasi-K or quantum meruit; unenforceable K. Available even to D (breaching party).

Front 38

Contract - Money restitution damages

Back 38

Value of benefit unjustly retained by D when K is void or unenforceable, or P chooses not to sue in K. P may recover > contract amount

Front 39

Contract - Replevin - restitutionary remedy

Back 39

Recovery of specific personal property, if it is unique or D is insolvent.

Front 40

Contract - Ejectment - restitutionary remedy

Back 40

Remove trespassing D from land – recover specific real property. Coupled w/damages for loss of use.

Front 41

Contract - When P is breaching party, can P recover restitutionary damages? What's the special rule?

Back 41

CL? No. ML? Yes. Restitutionary damages cannot be greater than contract rate and are reduced by any damages suffered by D as result of P's breach

Front 42

Contract - Defenses

Back 42

Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.

Front 43

Contract - Restitution

Back 43

Use if legal restitution is inadequate if D can keep property by posting bond, or if sheriff can’t find property.

Front 44

Contract - Constructive trust

Back 44

Court-imposed obligation on D to convey specific property which D has title to P. $ must be traceable

Front 45

Contract - Equitable lien

Back 45

Court-imposed security interest in specific property owned by D. Deficiency judgment ok. BFP wins.

Front 46

Contract - Specific performance

Back 46

Valid contract (terms more certain than for money damages); P has performed/excused/ready and able to perform; inadequate legal remedy alternative; mutuality of remedy; feasibility of enforcement (never personal services Ks); defenses

Front 47

Contract - Specific performance - Conditions fact patterns - deficiency

Back 47

Seller can't deliver agreed-upon consideration, e.g., quantity of land: if P is seller, can enforce (get SP) only if minor defect; B can get SP unless defect is extraordinarily large; abatement - court WILL LOWER purchase price because of defect).

Front 48

Contract - Specific performance - Conditions fact patterns - time is of the essence

Back 48

Explicit, w/forfeiture provision, & facts include partial performance subject to forfeiture - e.g., buyer's down payment; buyer pays late => forfeiture; buyer sues for SP… Equity abhors forfeitures; factors (loss to S is small, tardiness is de minimis; waiver (seller may have accepted late payments in past?); buyer would suffer undue hardship. Almost always award SP - but NOT if buyer has done nothing to perform

Front 49

Contract - On contracts questions, land is…

Back 49

unique.

Front 50

Contract - When can sellers get specific performance when all they have coming is money?

Back 50

In land sale contracts

Front 51

Contract - Personal property is not unique, except…

Back 51

one of a kind/very rare; personal significance to buyer; circumstances (uniqueness tested at time of litigation, not time of K)

Front 52

Contract - Mutuality arises when:

Back 52

P should not be able to enforce K against D because D could not enforce it against P (e.g., P was a minor)

Front 53

Contract - Court will reject mutuality when it feels ________ that P will ________.

Back 53

secure… perform.

Front 54

Contract - Defenses

Back 54

Unclean hands, laches, unconscionability (smell factor, time of formation); mistake, misrepresentation, SoF

Front 55

Contract - If P can show __________________, will get specific performance - no State of Frauds defense

Back 55

P has rendered valuable part performance (payment - whole/part, possession, valuable improvements, valuable services (ML)), in reliance on K

Front 56

Contract - Specific performance issue - equitable conversion

Back 56

Property interests of buyer and seller switch on execution, so buyer has real property interest (specifically enforceable right to land) and seller has personal property interest (specifically enforceable right to money) - even before closing.

Front 57

Contract - Equitable conversion - death: If S of land dies between execution and closing, his devisees inherit…

Back 57

the money from the sale of the land - the buyer owns the land.

Front 58

Contract - Equitable conversion - damage/destruction: Risk of loss - majority/minority rules:

Back 58

majority - on buyer; minority - on seller

Front 59

Contract - Covenant not to compete:

Back 59

must be to protect legitimate interest and reasonable in duration and geography

Front 60

Contract - Rescission

Back 60

GOOD DOG: K is void, and deal is called off. Material (not collateral) mistake. Mutual? YES; Unilateral? No, unless non-mistaken party knew or should've known of the mistake; modern trend grants rescission of mistaken party would suffer undue hardship). BUT see defenses (P's negligence never good d)

Front 61

Contract - Reformation

Back 61

VERY GOOD DOG: K is valid, but written form is wrong. K is rewritten correctly and enforced. Grounds? Misrepresentation, material mistake - mutual; unilateral mistake only if nonmistaken party actually knew of mistake. Defenses? (Unclean hands, non-defenses - P's negligence, SoF, PAR)

Front 62

Contract - Damages are not allowed if P sues for ___________ first.

Back 62

rescission