class 6, 7, 8, 9 Flashcards
declaratory judgements can be brought in criminal law
still requires an actual and existing controversy
prosecution must be imminent- prosecuting agency has threatened to prosecute if the P engage in certain planned conduct, or continues to engage in certain conduct
test: when prosecution is imminent and there is a concrete set of facts for the court to evaluate, the declaratory judgement remedy can be used to determine whether a criminal law will apply to the P conduct.
declaratory judgements generally are not available to challenge the constitutionality of a criminal statute
tro lasts at most 28 days
restitution
prevents a D from unjustly benefitting where the harm inflicted creates an economic benefit for the D
D’s gain exceeds the amount of the P’s loss or when the loss is difficult to calculate but the gain is easier to measure. any remedy that removes the D’s gain: unjust enrichment; quantum merit; promissory estoppel; replevin
what is not restitution
when a contract is fully formed, then the only remedy is an action for damages based on breach of contract
when a tort has been committed and the D obtains a benefit
when there is no benefit to the D
delivery truck dropped off clothing to the wrong house, but the clothes fit, and the D keeps them
restitution is an option
seller delivered goods that buyer ordered but the buyer failed to pay
no- breach of contract
daughter took her moms jewelry and sold it
conversion- P has the choice of remedies between compensatory damages or unjust enrichment
contractor laid the foundation for an addition then quit and then wants to be paid for the work
restitution applies
unjust enrichment
is a remedy and sometimes its also a cause of action where no other cause of action exists.
measures damages to the P by looking at the D unfair gain
goal= disgorge benefit value from the D
UE elements
- P conferred a benefit on the D
- the D appreciated or knew the benefit and
- the D acceptance would be unfair
P confers a benefit on the D
no contract is required
can be done by mistake, knowing transfer or transfer by tort or wrongful conduct
D appreciated or knew
the D knows or appreciates the benefit
good faith is not a determining factor
the knowledge required is not necessarily knowledge that the benefit was obtained by wrongful conduct, just that there is a benefit given
The D acceptance would be unjust
the D acceptance or retention of the benefit under the circumstances is such that it would be inequitable to allow the D to retain the benefit without the paying
choosing unjust enrichment
tortfeasor has a gain because of the tortious conduct and there is a loss to the P. the facts could give rise to both a tort and unjust enrichment. P will need to choose to either pursue the tort or unjust enrichment
if the P has lost more than the D has gained
court will look to D culpability. if the D was super culpable, the court will pick the highest range available in UE options.
fruits of D labor
if the D must also disgorge profits, it does not mean disgorgement of all profits- can subtract for the value of the D labor/ effort that went into obtaining the profits
assumpsit
waiving the tort to seek unjust enrichment
why choose unjust enrichment
cannot prove action for damages
it may be harder to establish the extent of the P losses than it is to prove the amount of the D gain
the amount of money the P could recover from the D gain was greater than the if the P had sought recovery of their losses
Defenses to restitution claims:
volunteer or officious intermeddler
D receives a benefit that D does not want and then P tries to get paid for it
one cannot voluntary confer a benefit for free and then later seek compensation
Inquiry: was the benefit acquired by the D or voluntarily provided by the P? was the benefit voluntarily provided?or provided by mistake, fraud, coercion, duress, or by agreement
K camped on J property, built a fire and left hastily in the morning, without extinguishing her campfire. J’s ski clothes burned. value of the clothes new is 10K value of used is 1k
somewhere between 1 and 10k because of personal nature of clothes
a man drives for uber and is paid 200 on average per day. car was hit and will be out for 2 weeks. what damages is the man most likely to obtain
cost of renting a similar car- not the lost wages because if he has a car he can still work
in which situation is a federal court most likely to find a TRO appealable?
a. it has lasted for more than a month without the restrained parties consent
b. the P cannot show a substantial likelihood of succeeding on the merits
c. the TRO imposes great hardship on the D when the hardship to the P would suffer little
d. the public interest weighs in favor of lifting the TRO
a.
essentially has become a preliminary injunction which are appealable by right.
b-d are not applicable in the consideration for granting the TRO or would have already been decided in favor of granting the TRO.
P filed a complaint in a CA court seeking 50k which represents the extra cost it had to pay for breach.
50k is certain- gets interest on the 50k because they would not have had to pay it but for the breach and prejudgement interest is discretionary
The Waves soccer team operated in the City of Seafront for forty years. Ten years ago Seafront built Waves Stadium, where the soccer team plays all its home games. The Waves are a noticeable source of civic pride among Seafront residents, and draw tourists from around the state. Income from season tickets and concession licensing brings in significant revenue to Seafront, which does not have a large business tax base. Two years ago, Seafront finalized a ten-year lease with the Waves to play in the stadium. Recently, Marcos, the Waves’ owner, announced that the team would be moving to Northshore, a slightly larger city in the same state. Seafront’s city council, anticipating adverse reputational and economic effects from the departure, has filed a breach of contract action against the Waves, seeking short-term injunctions to prevent the Waves from moving and specific performance of the lease agreement. Is a court likely to grant specific performance of the lease to Seafront?
b. Yes, because Seafront has no adequate legal remedy.
unable to calculate legal damages- no number can be calculated
Which of the following is true of both a preliminary injunction and a permanent injunction?
a. P must post a bond to obtain them
b. P must show either a likelihood of success on the merits or substantial questions on the merits to obtain them
c. the defense of laches may cause a court not to grant them
d. they may last no longer than 12 months
c.
change in position
(defense to UE)
benefit cannot be given back
change in position test
- benefit is mistakenly conferred on the D;
- the D is unaware of the mistake
- D did something they would not have done if it were not for receiving the benefit (detrimental reliance)
change in position for paying off an existing debt
paying off existing debt is not a change in position. the debt existed anyway and would have needed to be paid regardless
equitable unjust enrichment
constructive trust
is an equitable remedy for unjust enrichment
it compels a person who unfairly holds title to property of another to convey title in that property to the one whom it justly belongs.
A constructive trust is given to the P for the property that the D possesses, regardless of its current value and regardless of the form
for there to be a constructive trust, there must be an unjust enrichment by the D
this usually is where the D has engage in wrongful conduct: duress, fraud, undue influence, embezzlement, breach of fiduciary duty
It can happen with mistake but less common
to impose a constructive trust, some property must be in the D possession. The res requirement
a constructive trust must be imposed on a particular asset, not a value
if a party is deprived of 100 shares of stock that are valued at 10,000 a constructive trust is for 100 shares of stock, not 10,000.
because
Constructive trust continued
the D, or another person must have title to the property
generally, no CT for stolen goods because the D does not have title
but if the thief sells the stolen good and gets money, the thief now has title to the money and CT can apply
or, if the thief steals money, the thief has title over the money
if the D has lost the property then there is nothing left for the P to recover through constructive trust
construct trust is NOT available in these situations P will have to seek a legal remedy, possibly a legal unjust enrichment or legal damages
CT requirements
there are grounds for a constructive trust (UE elements are met plus the D gain was wrongful)
there must be a specific thing for CT to attach to (res)
D has title to the specific item- court must be able to identify it
tracing
P responsibility to follow the title and say “thats mine”
can be a physical location of a tangible asset or for a substitute of the original asset
constructive trust review
equity finds and imposes an implied promise by the D to hold the property as though it were in trust for the P
the constructive trust effects a complete disgorgement of property held by a D by ordering a transfer of all legal***
can be imposed over property in the form in which the D originally obtained it
increased in value goes to P
gets totally excluded from D bankruptcy (if that was happening)
constructive trust unavailable
when property is completely gone
property was sold to a bona fide purchaser
where the D has used the original asset to improve property which was previously owned by someone other than the P
construct trust unattractive
when the value of the property has diminished
lowest intermediate balance
presumed that when commingling with own funds they are not considered to have spent their own funds first
this is usually done in the most advantageous way to the P
in re foster
ponzi scheme:
did not use the lowest intermediate balance rule when there are multiple fraud victims- all P’s have equal interest
equitable lien
equitable remedy
unjust enrichment remedy
instead of returning title- give the P a security interest(creating collateral)
creates a security interest in the property only up to the value of the original property
once an equitable lien is imposed, the P will enjoy priority as a secured creditor to the property
cannot be imposed where the D has squandered the assets and there is no property left.
different from constructive trust in bankruptcy, a lien makes the P a creditor where CT makes the P not even part of the proceeding
EL generally
It can be imposed over property in the form in which the D originally obtained it or in a substitute form if the D has sold the property and used the property to purchase something else
if the D has used the property to improve his own property an EL can be imposed over that property
if the property diminishes in value - get original value. if increase- only get original value
no legal title requirement
must be tangible or money
EL v. CT
both are specific remedies
CT results in award of title
EL creates security
P can pick either if they both apply
tend to use EL when there is only partial title or part of the property
della ratta v. della ratta
can’t sue for CT because he does not have title
wants an EL
family member presumption
D may try to raise this as a defense
it is presumed that a family member is not bound to pay a child even if an adult for services while living at home as one of the family
this presumption may be overcome by proof of a special contract, express promise, or implies promise shown by the facts and circumstances
subrogation
a person can be substituted in place of another and have all rights and obligations pertaining to a lawful claim, demand, or right against a third party
the primary purpose is to obtain reimbursement
derivative claim:
subrogee can only receive if the subrogor could recover for the same claim
Defenses the D has available against the subrogor are generally available against the subrogee.
bona fide purchaser
one whose interest in real property is without knowledge or notice of another prior rights or interests in the property and therefore takes the property free and clear of such unknown interests.
buyer must have made a payment of value in good faith and without actual constructive notice of another rights
able to keep the property
generally, equitable relief may not be used to defeat the interests of a bona fide purchaser for value.
someone takes the P asset and sells it to someone else- did they know?
