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110 Cards in this Set

  • Front
  • Back
How to Spot a Remedies Question
• Uses word “remedies” or “relief” or states a specific remedy
• Often incorporated into a substantive fact pattern (torts, contracts, property)
3 Steps to Solving a Remedies Q
1. What substantive area of law? What specific type of problem is at issue?

2. Make sure P is going to win (no remedies unless P wins!)

3. Determine what remedies require discussion. NEEDS to be in specific order: 1) legal; 2) restitutionary (either legal or equitable); 3) equitable
Legal Tort Remedies
Legal Restitutionary Tort Remedies
1. Restitutionary damages
2. Replevin
3. Ejectment
Equitable Restitutionary Tort Remedies
1. Constructive trusts
2. Equitable liens
Equitable Tort remedies
Injunctive relief
Tort Damages (3 types)
Tort Compensatory Damages
Put P back where he would have been

4 Requirements

1. actual causation
2.foreseeability/proximate causation
3. Certainty
a. Past must be more certain than future
b. Historical record helps provide certainty
c. For future damages, must show more likely than not to happen.
4. Unavoidability
a. Plaintiff must take reasonable steps to mitigate damages
Certainty rules (compensatory tort damages)
a. Econ losses→basic certainty rules apply; calculation must be with sufficient certainty
b. Non-econ losses (general damages like pain and suffering)→ basic certainty rules DO NOT apply. Jury may award any amount
Form of Judgment Payment (compensatory tort damages)
a. Must be a lump sum; no installment
b. The award must be discounted to present value
c. Inflation is not taken into account (except under modern rule)
d. Essay: “The judgment must be a single lump payment that will be discounted to present value without taking inflation into account (except under modern rule)”
Nominal Damages (tort)
These are awarded where plaintiff has no actual injury. They serve to establish or vindicate plaintiff’s rights.
Punitive Damages (tort, 3 rules)
1. In order to get punitives, P must first have been awarded compensatory or nominal damages.
a. Note: punitives can also accompany restitutionary damages
2. In order to get punitives, defendant’s fault must be worse than negligence.
3. Generally awarded in an amount relatively proportionate to actual damages.
a. SCOTUS would limit punitives to a single digit multiple of actual damages, unless truly extreme facts.
Restitutionary Remedies (basic concept)
Basic concept: these are based on the theory that the defendant should not be “unjustly enriched.”
Legal Restitutionary Damages--how calculated (tort)
Calculated based on benefit to D (not injury to V)
Compensatory/Restitutionary Fact Patterns
1. Only compensatory available.
a. E.g. defendant destroys P’s cars
2. Only restitutionary available
a. e.g. D drives trucks on P’s property. No real injury to P, but benefit to D.
3. Both compensatory and restitutionary are available (give larger sum)
a. e.g., D steals your machine to use in its business. P is injured, so gets compensatory; D gets unjust enrichment, so restitution.
Can Tort V get both restitutionary and compensatory damages?
No. One or the other, whichever is more lucrative (but analyze both)
Resitutionary + Punitives?
Punitives can be attached to restitutionary damages as long as the underlying cause of action is in tort.
A Legal restitutionary remedy

P recovers possession of specific personal property/chattel
2 Part Test for Replevin
1. P has a right to possession
2. There is a wrongful withholding by the defendant.
Likely Replevin Issues (3)
1. Timing of recovery: P can recover the chattel before the trial
a. Tip: If this is an issue, 1) the P will have to post a bond; 2) defendant can defeat an immediate recovery by posting a redelivery bond (then D can keep the chattel until after the trial).
2. The sheriff repossesses the property for the plaintiff. No self help.
3. Replevin is almost always coupled with damages, either compensatory or restitutionary, for lost use or benefit to the defendant during the time of detention.
Ejectment (type of remedy and definition)
A Legal restitutionary remedy

plaintiff recovers possession of specific real property
2 part test for ejectment
1. P has a right to possession of the property
2. There has been a wrongful withholding by the D.
Likely Ejectment Issues
1. Ejectment is only available against a defendant who has possession of the property.
a. NOT a guy who crosses your lawn every day→no possession
b. But YES against adverse possessor, or holdover tenant after lease ends.
2. Sheriff does the ejectment
3. Ejectment almost always coupled with damages, either compensatory or restitutionary, for lost use or benefit to the defendant during the time of detention.
Constructive Trusts and Equitable Liens (Type and Typical fact pattern)
Equitable Restitutionary Remedies

i. Fact pattern: Improperly or wrongfully acquired property, for which defendant has title
1. Tip: Can only use this when the D has title
Constructive trust (definition)
imposed on improperly acquired property to which defendant has title. D serves as “trustee” and must return the property to P (usually the trust B)
Equitable Lien
Imposed on improperly acquired property to which defendant has title. Property will be subject to an immediate court directed sale.

Proceeds go to P. If proceeds are less than FMV at time it was taken, deficiency judgment will issue for the difference and can be used against D’s other assets.
Rules for Constructive Trust/Equitable lien
1. P must show inadequate legal alternative (e.g. b/c D is insolvent, or, for constructive trusts, if property is unique)

2. Tracing is allowed

3. BFPs prevail over the P

4. P will prevail over unsecured creditors (to the extent you have a deficiency judgment in connection with an equitable lien, you stand on equal footing with other unsecured creditors.)
Choice of remedy: Constructive Trust or Equitable lien?
1. If property value subsequent to the taking goes up→constructive trust (P wants the added value of the property)
2. If property value subsequent to taking goes down→Equitable Lien
3. When defendant’s property cannot be traced solely to plaintiffs property, only an equitable lien is available.
Injunctive relief (definition)
Defendant is ordered to do or refrain from doing something
Injunctive relief: threshold inquiry
Determine if this is a permanent or temporary/preliminary injunction.
1. Permanent: issued after a full trial on the merits
2. Temporary: Issued pending a trial on the merits
3. If in doubt→guess it’s a permanent injunction.
Temporary Injunctive relief (2 part test)
Step 1: Establish that there is irreparable injury.
a. Must be put in a temporal context: I need relief NOW, before the trial, or else there will be irreparable injury.
b. Must balance the hardships: injury is weighed against any hardship to Defendant

2. Step 2: Establish Plaintiff’s likelihood of success→probability
a. Essay: The court should impose a bond requirement on the P to reimburse defendant if the injunction injures him/her and the plaintiff does not succeed.
Temp. Injunction compared to TRO
TRO even faster than Temporary injunction; issued pending a hearing to determine whether preliminary injunction should issue.

Test is the same, but must show IMMMEDIATE harm

TRO can be ex parte

TROs limited to 10 days. Must have regulary temporary injunction hearing by then.
TRO can be ex parte, thus:
1) notice is not required;

2) adversarial proceeding is not required.

a. But if there’s an opportunity to allow D to appear, you must make a good faith effort to give D notice and chance to appear.
Permanent Injunction 4 Part Checklist
I’m Feeling Bold and Determined
1. Inadequate Legal remedy
2. Feasibility of Enforcement
3. Balancing Harships
4. Defenses
Inadequate Legal Remedy Alternatives (step one of permanent injunction)
1. Replevin: Sheriff unable to recover the property; D can file a redelivery bond and could destroy chattel in interim.
2. Ejectment: Sheriff may refuse to act (e.g. won’t rip down a building with a slight encroachment)
3. Damages—4 reasons
a. Too speculative (uncertain what damages would be)
b. Defendant Insolvent
c. True Irreparable injury (e.g. factory spewing toxic chemicals)
d. Avoiding a multiplicity of actions
i. Tip: they will tell you that there has been a prior history of litigation b/w parties.
e. Tip: easier to show $$ inadequate when O is protecting an interest in land.
2 types of injunction (characterization)
Negative: D must stop
Mandatory: order D to do something
Feasibility of Enforcement (Part 2 of Perm. Injunction analysis)
Negative Inj: enforcement not a problem here

Mandatory: Enforcement MAY be a problem based on the 1) difficulty of supervision, or 2) concern with effectively ensuring compliance
Mandatory Injunction Enforcement Fact pattern
a. Act involves application of great taste/skill/judgment→injunction denied.
b. Series of acts over period of time → Injunction denied, unless plaintiff’s case is otherwise great.
c. An out of state act is required.
i. Resident D→Injunction granted, even if act out of state
ii. Nonresident D→injunction denied.
Balancing Harships (perm injunction step 3)--4 rules
1. There must be a gross disparity between defendant’s detriment and P’s benefit in order to deny injunction
2. Even if there is a gross disparity, there will be no balancing if D’s conduct was willful.
3. If you decide to balance the hardships, in whole or in part, and if P does not get the injunction, consider awarding money damages.
4. Hardship to the public is also taken into account. (e.g. plaintiff’s house is the only building near a polluting factory that employs the whole community→deny injunction but award damages)
5. Tip: Balancing the hardships defense is almost always a primary discussion item when the tort is nuisance or trespass to land.
Defenses to Permanent Injunction
Unclean Hands
Free Speech
Unclean Hands (defense to inj.)
Available only if the plaintiff’s alleged improper conduct is RELATED to the lawsuit.

SO even if P is a scumbag in all other ways, can’t get him with this defense.
Laches (defense to inj.)
Laches is a “running of a period of time” defense. Unlike SOL, however, which involves mere passage of time, laches is concerned with the effect of the passage of time.

Laches period will never be greater than the SOL time period (no need for laches; SOL will bar the claim).

3 Laches Issues
i. Clock starts to run when the plaintiff learns of the injury
ii. When does the delay cut off right to equitable relief? **When it has been both unreasonable and prejudicial to the defendant

If laches applies, consider awarding the plaintiff money damages.
Impossibility (defense to inj.)
If impossible for D to carry out terms of injunction
Free Speech
If tort is defamation or a privacy publication branch tort→Injunction likely denied based on free speech grounds.
Will Equity enjoin a crime?
No. Equity will not enjoin a crime (but some crimes can also be torts)
Who will be bound by an injunction?
1. Defendant
2. Employees and agents acting with notice.
3. Others acting in concert with notice (e.g. vendor selling shirts that manufacturer was enjoined from selling)
“Erroneous” Injunction
1. You MUST obey an erroneous injunction. (e.g. under an obsolete statute)
2. Therefore, you must go to court to have it modified or resolved.
Contempt—disobedience of a court order
1. Civil contempt: money fine; imprisonment (Defendant holds the keys to the jailhouse→can get out anytime by agreeing to comply)
2. Criminal contempt (to punish): money fine; imprisonment (D does not hold keys).
Injunction Tip
Injunction is almost always coupled with damages for injuries incurred during time period prior to obtaining injunction.
Has the tort plaintiff been/being injured? (what remedy results?)
compensatory damages
Has the tort defendant derived a benefit?

(what remedy results?)
restitution/unjust enrichment
Does the tort plaintiff want the property returned?

(what remedy results?)
Tort wrongs relate only to the past?

(what remedy results?)
Do the tort wrongs relate only to the future? (what remedy results?)
prospective remedies: injunction, replevin, injunctive relief
Destroyed/Damaged property→
Dispossession(personal property)→(6)
compensatory damages
Restitution (if D benefits)
Mandatory injunction (if chatell unique and damages and replevin don’t work)
Constructive trusts/equitable liens (particularly if defendant is insolvent and/or tracing facts are involved)
Self-help (reasonable force to recapture)
Simple trespass→
nominal damages,
restitutionary damages,
Injunction (avoiding multiplicity of actions)
Destruction/damage of realty→
Damages; Injunction
Dispossession of realty→
compensatory damages,
restitutionary damages;
Ejectment (since this is available no injunction);
constructive trusts/equitable liens
damages; Injunction (emphasize balancing hardships to D);
NO restitution.
Compensatory damages;
Injunction (emphasize balance of hardships to d).;
NO restitution.
Personal Injury Torts —Available remedies
i. Compensatory Damages
1. Econ losses/special damages→apply certainty rules
2. Non econ damage→ no certainty rules
3. Lump sum payment; discounted to present value; ignore inflation
ii. Injunction→only against prospective intentional tortuous conduct
Fraud-- Available remedies
i. Damages
ii. Constructive trusts/equitable liens
iii. Tip: Always consider whether punitives should be awarded AND if it also could be analyzed as a contracts case.
Legal K Remedies
Compensatory Damages
Consequential Damages
Legal Restitutionary K Remedies--when and what
When: K fails after P has partially performed

1. Restitutionary Damages
2. Replevin
3. Ejectment
Equitable Restitutionary Remedies--K
Constructive Trusts/Equitable Liens
Equitable Remedies (K)
i. Specific Performance*
ii. Rescission
iii. Reformation
Compensatory Damages for K--4 requirements
Measured on P's injury

4 requirements
1. Causation
2. Foreseeability (at time of K formation)
3. Certainty
4. Mitigation
Direct K damages
1. Flow inherently from the wrong
2. Tip: Look for expectation damages→P’s position if contract was performed.
Consequential Damages--K
1. Related damages foreseeable at time of formation (Hadley v. Baxendale). But D must have a reason to foresee the consequences

2. Lost reputation fact pattern: Contractor intentionally uses substandard materials in job for real estate agent→agent argues harm to reputation in addition to compensatory damages. P will need to show foreseeability.
Nominal Damages in K
Are Allowed
Punitives in K
Not allowed

But if willfull, try to characterize it as fraud (tort)--Punitives
Liquidated Damages Clauses--2 part test of validity
1. Damages are very difficult to ascertain at the time of K formation
2. This was a reasonable forecast of what damages would be.
a. If amount excessive→invalid penalty
Result of Liquidated Damage Clause (valid and invalid)
a. If valid liquidated damages clause→only liquidated amount available
b. If invalid→only actual damages available.
Clause provides that nonbreaching party could get either liquidated damages or actual damages?
INVALID. You get your actual damages.
Restitutionary Remedies to Prevent Unjust Enrichment--K (Fact Pattern)
K fails after P has rendered partial or complete performance
D benefits but K is unenforceable -->

a. P can recover for value of the benefit
b. P can get property back if the property is unique or if defendant is insolvent.
Breach of K; P is nonbreaching party.

Can P get restitutionary damages for property/money given to, or services rendered for, defendant?

Can P get property back?
$: Yes, for the value of the benefit.

Property? Yes if D is unique, or D is insolvent.
Breach of K; P breached (e.g., after paying 30%, defaults)
Traditional View: no recovery

Modern: Recovery, but a) cannot be greater than K rate and b) is reduced by any damages suffered by defendant as a result of the breach.
Specific Performance--5 part checklist
Cha Cha is Fairly Difficult

1. Contract is Valid
2. K Conditions of Plaintiff satisfied
3. Inadequate Legal Remedy
4. Feasibility of Enforcmeent
5. Defenses
SP Step 1: Contract must be valid, certain, and definite
P needs to show more certainty and definiteness of K than in action for damages
SP step 2: K conditions of the P must be satisfied
P must show conditions fulfilled, ready to be fulfilled, or excused from performance.

2 favorite bar exam conditions fact patterns: Land Deficiencies & Time of the Essence
Land Deficiencies and SP (differing results if buyer or seller is P; plus bar exam imperative)
Land Deficiencies: Seller is slightly deficient in delivering an amount of land

a. If Seller is P: We can specifically enforce the K if the defect is minor. But not if defect is major, unless seller can cure the defect by closing

b. If Buyer is P: Can enforce the K even if the defect is major. However, can’t enforce if the defect is very major.

c. Bar exam imperative: MUST include sentence saying that if it enforces, the court will lower the purchase price to take the defect into account. This is called an abatement.
Time of the Essence and SP
Fact pattern: Buyer does not meet K condition of timely performance. Clause will contain a forfeiture provision (forfeiture of all performance rendered to date); there will have been partial performance now subject to this forfeiture. Buyer will have made a late payment. Buyer will bring a lawsuit for specific performance.

Result: Equitable Maxim: “Equity abhors forfeitures” Factors court will look at to avoid a forfeiture
1. Loss to seller is small
2. Tardiness is de minimis
3. Waiver (seller has previously accepted late payments)
4. Buyer would suffer undue hardship
iii. Tips: P almost always gets specific performance here; and you should note that under the modern trend couerts would give plaintiff restitutionary relief if SP is not granted.
Inadequate Legal Alternative (Step 3 of SP)

1. Damages are Speculative
2. Defendant is Insolvent
3. Multiple lawsuits necessary
4. Thing bargained for is Unique**--antiques, custom goods, etc.
5. Liquidated Damages do not make money damages adequate. SP still available (UNLESS clause provides it's the only remedy)
What counts as unique for purposes of SP?
Real Property--Always (even if it looks identical). Sellers can get SP too, even if all they have coming is money

Personal property--usually not: except antiques, art, personalized significance. Test uniqueness at the time of litigation, not K.
Feasibility of SP (step 4 of SP)
1. Personal Services Contract Enforceable→NO
a. Rule: These are not enforceable because 1) enforcement problem and 2) involuntary servitude.
2. Covenants not to compete→Enforceable if 2-part test is met
a. The services are unique
b. The scope (geographical and duration) is reasonable
Equitable Defenses to SP
Unclean hands
Unconscionability (at time of K)
Contract Defenses to SP
a. Mistake
b. Misrepresentation
c. Statute of Frauds
Exceptions to S/F in land Ks
Rule: Part performance satisfies the S/F in transfers of real estate. Any 2 of these 3: 1) improvements on land; 2) payment; 3) possession.
K Rescission--what type of remedy?
K Rescission--2 step analysis
1. Are there grounds for rescission?
a) mistake
b) misrepresentation
c) other grounds: K formation defenses: Sam Married Amanda In Dublin Under Irish Flowers
What mistakes are valid (and not) for rescission (2 exceptions)
a. Mutual mistake about material fact→ rescission granted
b. Mutual mistake about collateral fact→ rescission denied
c. Unilateral Mistake → rescission is denied
i. Exception: non-mistaken party knows or should have known of the mistake.
ii. Modern trend exception: mistaken party would suffer undue hardshop if no rescission
Rescission due to Misrepresentation
Rescission is granted, as long as P shows he relied on the misrepresentation.
Other grounds for K rescission (besides M&M)
Sam married Amanda In Dublin Under Irish Flowers
Valid defenses to rescission
1. Unlcean Hands
2. Laches
3. Negligence of the plaintiff is NOT a good defense to prevent rescission.** MBE!
If Contract P sues for damages first...

If sues for rescission first...
then rescission is not allowed.

then you CAN still get damages
Availability of restitution after rescission
If P who is entitled to rescission has previously rendered performance on the K, she can get compensated for it or get the property back via restitution.
Changes the written agreement to conform to parties’ original understanding.
3 Step Analysis for K Reformation
Determine if there is a valid K
Determine if there are grounds for reformation
Determine if there are valid defenses
Grounds for reformation of K
a. Mutual mistake→granted
b. Unilateral mistake→denied, unless non-mistaken party actually knew about the mistake. (this regarded as fraud)
c. Misrepresentation→reformation is granted.
valid defenses to reformation of K
Unclean hands\
Non-defenses that will NOT work
i. Negligence of P
ii. Statute of Frauds
iii. Parol Evidence rule
Rescission Mnemonic
Good Dog
Reformation Mnemonic
Very Good Dog

Valid K
Grounds for reformation
Has Contract P been injured?
→ compensatory, expectation interest,no punitives
Has Contract D derived a benefit? →
restitutionary remedies.
Does Contract P want property returned? →
Unique Property? Insolvent Defendant?
Does P want K performed?
→ Specific Performance—cha cha is fairly difficult.
Does P want K ripped up?
→ rescission—Good Dog
Does P want K rewritten?
→ Reformation to conform to original intent—Very good dog