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28 Cards in this Set
- Front
- Back
TORT DAMAGES |
Damages are a legal remedy awarded to make P whole.
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COMPENSATORY DAMAGES |
Compensatory damages are awarded to compensate P for injury or loss. Damages must be caused by tortious action, foreseeable at the time of tort, be certain (not overly speculative), and unavoidable. P has a duty to mitigate damages. |
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PURE ECONOMIC LOSS |
Pure economic loss is not recoverable for most torts, except for intentional interference with business relations. |
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NOMINAL DAMAGES |
Nominal damages are available in both tort and contract. They are awarded where P's rights have been violated, but P has sustained no loss. |
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PUNITIVE DAMAGES |
Punitive damages are awarded to punish D for willfull and wanton tortious conduct - more than negligence. They are not available in contract. |
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MONEY RESTITUTION |
Where D has been unjustly enriched, court may award damages based on value of the benefit to D. P cannot get both compensatory damages and money restitution. He must make an election of remedies. |
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REPLEVIN |
Restitutionary remedy available in torts or contract. P may recover possession of specific personal property wrongfully withheld by D. P may also be entitled to damages for lost use during wrongful withholding. P may not recover from a BFP. |
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EJECTMENT |
Restitutionary remedy available in tort and contract. P may recover possession of specific real property wrongfully withheld by D. It is only available against D who has possession. P may also be entitled to damages for loss of use during wrongful withholding. |
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INADEQUATE LEGAL REMEDIES |
Equitable remedies only available when legal remedies are inadequate. (1) Money damages are too speculative to calculate w/certainty. (2) D is insolvent. (3) Replevin is unavailable b/c property has been sold to BFP. (4) Property is unique so money damages inadequate to compensate for loss. Real property is always unique. Personal property is unique if it is one-of-a-kind, very rare, or of special personal significance. |
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CONSTRUCTIVE TRUST |
Compel D to transfer title to unjustly retained property to P. Inadequate legal remedy. Property can be traced. P receives benefit of any increase in value. Property must be solely traceable. Lowest Intermediate Balance Rule - P is entitled to the lowest balance recorded after funds commingled. Cannot recover from BFP.
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EQUITABLE LIEN |
An equitable lien is similar to constructive trust but property acts as collateral for money owed. Same rules as constructive trust except: P does not receive benefit of increase in value. OK if not solely traceable. Cannot recover from BFP.
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PRELIMINARY INJUNCTION |
Available in both tort and contract. Preserve the status quo pending full trial on the merits. (1) Irreparable harm will occur in its absence. (2) Likelihood of success on the merits. (3) Balancing of hardships in favor of plaintiff. A large disparity in hardships weighs in favor of impacted party. Willful misconduct weighs heavily against wrongdoing. (4) No defenses available. |
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TEMPORARY RESTRAINING ORDER |
Preserve status quo for short period pending further litigation regarding preliminary injunction. Same elements as preliminary injunction except lack of available defenses.
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PERMANENT INJUNCTION |
Where a court orders a party to perform or stop performing an act. P must meet five-part test (I Pray For Big Desserts): (1) Inadequate legal remedy (2) Protectable interest (3) Feasibility of enforcement. Injunction cannot be difficult for court to enforce due to difficulty of supervision, concern with ensuring effective compliance, or length of duration. (4) Balancing of hardships in favor of P. (5) no Defenses available. |
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UNCLEAN HANDS |
P is guilty of misconduct related to the lawsuit. |
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LACHES |
Unreasonable lapse of time between When P learns about the injury and when P files action Causes prejudice to D.
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PURCHASE MONEY RESULTING TRUST |
Equitable remedy implied by law to prevent unjust enrichment. Sale of property holds legal title (trustee) but consideration supplied by another party (beneficiary). Consideration must be supplied at or before time trustee takes title. Not presumed where parties are closely related or arrangement involves unlawful purpose. |
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CONTRACT DAMAGES |
Legal damages are applicable where parties have a valid K, D is in breach and P has suffered damage and seeks money to compensate for loss. Damages must be definite and certain, reasonable and foreseeable, and caused by breach. Liquidated - Stipulated where actual damages difficult to calculate. Consequential - Losses foreseeable at time of K Reliance - Restore P to position, if K not been made. |
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EXPECTATION (COMPENSATORY) DAMAGES |
Expectation damages compensate P for the value of the benefit P expected to receive from K. What did P bargain for? Determine the value of K to P had K been properly performed. |
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CONSEQUENTIAL DAMAGES |
Consequential damages seek to compensate P for related damages foreseeable at the time of contracting. They are almost never awarded. |
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RELIANCE DAMAGES |
Reliance damages seek to put P in the position he would have been in had he never entered into the K. |
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LIQUIDATED DAMAGES |
A liquidated damages clause is appropriate where money damages are difficult to calculate and the stipulated amount bears a reasonable relationship to anticipated loss. |
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If K unenforceable AFTER P has performed |
P can get money damages for property/money given to or services rendered to D for VALUE of the BENEFIT. P can get property back if it is unique or D is insolvent. Quasi-K: P can be awarded value of D's ill-gotten gain or difference between present value of good less value before benefit conferred by P. |
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If P breaches K |
Traditionally, P would receive nothing. Under the modern view, P may still recover but cannot recover more than the K rate and recovery is reduced by damages suffered by D as a result of the breach. |
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If D breaches K |
P may recover money damages for property/money given to or services rendered to D for the VALUE of the BENEFIT. P can get property back if D is insolvent. |
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RESCISSION |
Equitable remedy that allows party to undo the bargain, as if K was never formed. There must be appropriate grounds for rescission, e.g., mistake, misrepresentation, fraud or duress. Unilateral mistake is typically not a ground for rescission unless non-mistaken party knows of mistake and proceeds anyway. |
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REFORMATION |
Equitable remedy where court will rewrite K to reflect parties' true agreement where document does not adequate reflect. Requires a valid K, appropriate grounds (mutual mistake, unilateral mistake if non-mistaken party knows of mistake, or misrepresentation), and no valid defenses. |
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SPECIFIC PERFORMANCE |
Equitable remedy where court orders party to perform under K. Requires the following (Chocolate Cheesecake Is My Favorite Dessert) (1) valid Contract (2) Conditions satisfied (3) Inadequate legal remedy (4) Mutuality - Both parties able to perform. Mutuality of remedy not required under modern view. (5) no Defenses |