Causes of Action & Remedies

Question 1

Is there a contract?

Answer 1

You need:
- Offer
- Acceptance
- Consideration

Question 2

Counteroffer?

Answer 2

A counteroffer functions as both a rejection of an offer to enter into a contract, as well as a new offer that materially changes the terms of the original offer.

Question 3

Choice of Law

Answer 3

The Uniform Commercial Code (UCC) is the controlling law if the contract involves a sale of goods, while all other contracts are governed by the common law.

Question 4

Statute of Frauds

Answer 4

Contracts are invalid when not in writing if:
- Sale of land
- Purchases of goods over $500
- Performance extends beyond 1 year

Question 5

Fraud

Answer 5

Fraud occurs when one party tricks another into signing an agreement by using fraudulent statements.

Question 6

Unconscionability

Answer 6

If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it.

Question 7

Breach

Answer 7

A breach occurs when a party fails to perform their part of a contractual agreement.

If the breach is large enough that the purpose of the contract is not met, the breach is considered material.

Question 8

Cover

Answer 8

A remedy to cover the difference to acquire the goods a buyer was unable to get from seller’s breach

Question 9

Compensatory Damages (Contracts)

Answer 9

Damages to fully compensate Plaintiff – make the P whole, not overcompensate.

Direct Damages: Plaintiff’s lost benefit of the bargain - as of date of breach
Consequential Damages: Compensate Plaintiff for secondary consequence of breach, not part of benefit
Incidental Damages: When there’s a breach contract for goods and expenses are incurred in connection with the storage/insurance/financing/etc until it can be resold

Question 10

Restitution Damages

Answer 10

Damages for Plaintiff meant to stop unjust enrichment

Question 11

Specific Performance

Answer 11

A court orders a party to actually perform its promise as closely as possible, because monetary damages are somehow inadequate to fix the harm

Question 12

Injunctive Relief

Answer 12

Specific relief - court order requiring someone to do or stop from doing something

Need to show:
1) Inadequate remedy of law
2) Irreparable harm to plaintiff without injunction
3) Balance of the hardships (does it favor plaintiff?)
4) Public interest

Step 1: TRO
Temporary, emergency relief. Typically lasts 2 weeks.

Analyze injunctive relief factors + exigent circumstances

Step 2: Preliminary Injunction
Injunction while litigation is in process.

Analyze injunctive relief factors + Plaintiff’s likelihood of success on the merits

Question 13

Declaratory Judgment

Answer 13

A court-issued judgment that defines and outlines the rights and obligations of each party in a contract

Question 14

What’s the tort? Is there intent?

Answer 14

Intentional torts require intent of the tortfeasor

Question 15

Trespass to Chattels

Answer 15

An 1) intentional act of 2) dispossessing 3) the personal property 4) of another

Normal remedy: FAIR MARKET VALUE of item
If you want it back: WRIT OF REPLEVIN

Question 16

Conversion

Answer 16

An 1) intentional act of 2) dispossessing 3) the personal property 4) of another 5) and the loss was so substantial it requires the full value of the item

Normal remedy: FAIR MARKET VALUE of item
If you want it back: WRIT OF REPLEVIN

Question 17

Private Nuisance

Answer 17

Substantial interference with the use and enjoyment of one’s land

• Plaintiff must be making a reasonable use of their land
• Defendant must be making an unreasonable use of defendant’s land

Question 18

Public Nuisance

Answer 18

The interference with the rights of the public as a whole, or a substantial segment of it concerning issues of public health, safety, morals, welfare, or convenience

Question 19

Defense Against Nuisance

Answer 19

Coming to the nuisance

Question 20

Trespass

Answer 20

The intentional physical entry onto the land of another without consent

Question 21

Negligence

Answer 21

Plaintiff must show 1) a duty 2) that was breached 3) cause 4) proximate cause 5) harm

Question 22

Compensatory Damages (Torts)

Answer 22

Plaintiff’s actual harm - pain & suffering, damage

Tortfeasor liable for all injuries resulting from tort (damages are natural consequences of the wrongful act)

Question 23

Consequential Damages (Torts)

Answer 23

Damages that come out of the harm, but aren’t a direct result - think loss income

Question 24

Punitive Damages

Answer 24

Damages to punish the defendant for the wrong-doing

Deters the defendant and others from repeating the act in the future

Question 25

Constitutional Rights

Answer 25

Establish the Constitutional right:

First Amendment - Freedom of 1) religion, 2) speech, and 3) the press. Right to 1) peaceful assembly and 2) to petition the government for a redress of grievances

Forth Amendment - Unreasonable search & seizure

Fifth Amendment - Right 1) against self incrimination, 2) to due process of law, and 3) from double jeopardy

Sixth Amendment - Right to counsel

Eighth Amendment - Right to freedom from cruel and unusual punishment

Question 26

42 U.S.C. § 1983

Answer 26

Civil action for deprivation of rights

Question 27

Declaratory Relief

Answer 27

Seeks to establish rights