Causes of Action & Remedies Flashcards
Is there a contract?
You need:
- Offer
- Acceptance
- Consideration
Counteroffer?
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.
Choice of Law
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.
Statute of Frauds
Contracts are invalid when not in writing if:
- Sale of land
- Purchases of goods over $500
- Performance extends beyond 1 year
Fraud
Fraud occurs when one party tricks another into signing an agreement by using fraudulent statements.
Unconscionability
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.
Breach
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.
Cover
A remedy to cover the difference to acquire the goods a buyer was unable to get from seller’s breach
Compensatory Damages (Contracts)
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
Restitution Damages
Damages for Plaintiff meant to stop unjust enrichment
Specific Performance
A court orders a party to actually perform its promise as closely as possible, because monetary damages are somehow inadequate to fix the harm
Injunctive Relief
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
Declaratory Judgment
A court-issued judgment that defines and outlines the rights and obligations of each party in a contract
What’s the tort? Is there intent?
Intentional torts require intent of the tortfeasor
Trespass to Chattels
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
Conversion
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
Private Nuisance
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
Public Nuisance
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
Defense Against Nuisance
Coming to the nuisance
Trespass
The intentional physical entry onto the land of another without consent
Negligence
Plaintiff must show 1) a duty 2) that was breached 3) cause 4) proximate cause 5) harm
Compensatory Damages (Torts)
Plaintiff’s actual harm - pain & suffering, damage
Tortfeasor liable for all injuries resulting from tort (damages are natural consequences of the wrongful act)
Consequential Damages (Torts)
Damages that come out of the harm, but aren’t a direct result - think loss income
Punitive Damages
Damages to punish the defendant for the wrong-doing
Deters the defendant and others from repeating the act in the future
Constitutional Rights
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
42 U.S.C. § 1983
Civil action for deprivation of rights
Declaratory Relief
Seeks to establish rights
