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💕CA Remedies > BE.C Outline > Flashcards

BE.C Outline Flashcards

1
Q

Compensatory damages are based on the injury to P. They put the injured party in ______________.

A

The position they would have been had the injury not occurred.

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2
Q

__________ are based on the injury to P. They put the injured party in the position they would have been had the injury not occurred.

A

Compensatory damages

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3
Q

4 Requirements for Compensatory Damages

A
  1. Causation (but for test)
  2. Foreseeability (proximate cause)
  3. Certainty (can’t be too speculative)
  4. Unavoidability (must mitigate)
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4
Q

3 Requirements for Punitive Damages

A
  1. first awarded compensatory or nominal damages (or restitution any)
  2. D’s fault greater than negligence
  3. Relatively proportionate to actual damages
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5
Q

3 Torts Legal Remedies

A
  1. Compensatory Damages
  2. Nominal Damages
  3. Punitive Damages
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6
Q

Plaintiff _______ recover both compensatory and restitutionary remedies.

A

Cannot

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7
Q

Replevin vs. Ejectment

A

Replevin = personal property
Ejectment = real property

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8
Q

2-Part Test for Replevin & Ejectment

A
  1. P has a right to possession
  2. Wrongful withholding by D

*can be combined w/ damages for lost use or benefit

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9
Q

Recover possession of specific personal property through sheriff.

A

Replevin

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10
Q

Recover of possession of specific real property through sheriff.

A

Ejectment

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11
Q

3 Legal Restitutionary Damages

A
  1. Restitutionary Damages
  2. Replevin
  3. Ejectment
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12
Q

2 Equitable Restitutionary Remedies

A
  1. Constructive Trust
  2. Equitable Lien
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13
Q

Equitable restitutionary remedies (constructive trust & equitable lien) are used when _____________

A

Money damages are inadequate because:
(1) property is unique, or
(2) defendant is insolvent

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14
Q

Equitable restitutionary remedies (constructive trust & equitable lien) are used when money damages are inadequate because:

A

(1) property is unique, or
(2) defendant is insolvent

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15
Q

Equitable restitutionary remedies (constructive trust & equitable lien) are used when _________ because:
(1) property is unique, or
(2) defendant is insolvent

A

money damages are inadequate

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16
Q

_________________ (constructive trust & equitable lien) are used when money damages are inadequate because:
(1) property is unique, or
(2) defendant is insolvent

A

Equitable restitutionary remedies

17
Q

Equitable restitutionary remedies (____________) are used when money damages are inadequate because:
(1) property is unique, or
(2) defendant is insolvent

A

Constructive trust & equitable lien

18
Q

When to use constructive trust vs. equitable lien?

A

Constructive Trust = value of property went up
Equitable Lien = value of property went down

19
Q

4 Rules for Const. Trust & Equit. Lien

A
  1. Inadequate legal remedy alternative
  2. Tracing allowed to bank account
  3. BFPs prevail over P so only option is to trace
  4. P prevails over unsecured creditors
20
Q

4 Defenses to a Permanent Injunction

A
  1. Unclean Hands
  2. Laches
  3. Impossibility
  4. Free Speech [defamation or privacy publication]
21
Q

TRO & Preliminary Injunction - P must show:

A
  1. Irreparable injury
  2. Balance of hardships favors P
  3. Likelihood of success
22
Q

TRO may be ex party provided _________.

A

Good faith effort

23
Q

Injunctive Relief

A

An order to do or not do something.

24
Q

4 Contracts Legal Remedies

A
  1. Compensatory Damages [Direct & Consequential]
  2. Incidental Damages
  3. Nominal Damages
  4. Liquidated Damages

*Punitive Damages NOT ALLOWED

25
Q

Liquidated Damages allowed when:

A
  1. Damages are difficult to ascertain at k formation
  2. Reasonable forecast of what the damages would be

*if amount excessive, void as penalty
*If liquidated valid, ONLY gets liquidated. If not, ONLY actual damages.

26
Q

Restitution for Unenforceable Contract

A

Plaintiff gets value of benefit conferred, even if greater than the unenforceable contract rate.

Plaintiff can also get any property back if unique or if defendant is insolvent.

27
Q

Consequential damages are available for __________ foreseeable at time of contract.

A

Related damages

28
Q

Consequential damages are available for related damages ____________ .

A

Foreseeable at time of contract

29
Q

Restitution is based on the theory that D should not be ________, usually after P has at least partially performed.

A

unjustly enriched

30
Q

Restitution for Breaching Party

A

Traditional view is no recovery for already-rendered performance, but modern view permits recovery, but cannot be greater than contract rate and is reduced by any damages to non-breaching party.

31
Q

5 Requirements for Specific Performance

A
  1. Contract is valid, certain & definite
  2. P’s duties have been satisfied
  3. Inadequate legal remedy alternative
  4. Feasibility of enforcement
  5. No defenses
32
Q

Uniqueness for personal property is tested at time of _________

A

litigation not at contract formation

33
Q

Covenants not to compete are enforceable if:

A

(1) services are unique
And
(2) scope (geographic & duration) is reasonable

34
Q

6 Defenses to Specific Performance

A
  1. Unclean hands
  2. Laches
  3. Unconscionability (at time of formation)
  4. Mistake
  5. Misrepresentation
  6. SOF
35
Q

Rescission

A

The original K is voidable & rescinded.

Must be (1) grounds for rescission (contract formation defenses showing lack of assent) and (2) no valid defenses.

36
Q

Reformation

A

Changes written agreement to conform with parties’ original understanding.

💕CA Remedies (2 decks)

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