Defenses Flashcards
Unclean Hands
The doctrine of unclean hands bars a plaintiff’s recovery when a plaintiff is guilty of unethical, unlawful, or otherwise improper conduct related to the subject of the lawsuit.
Mitigation of Damages
A plaintiff CANNOT recover damages as a result of a breach that could have been avoided. Accordingly, a party must take reasonable steps to mitigate his losses. If he fails to do so, the court will reduce the total damages by the amount that could have been avoided.
Intentional Misrepresentation
To state a prima facie case for intentional misrepresentation, a plaintiff must show:
(1) misrepresentation of a material fact by the defendant; (2) the defendant knew that the statement was false (scienter);
(3) intent of the defendant to induce the plaintiff;
(4) actual and reasonable reliance by the plaintiff; AND
(5) damages.
Negligent Misrepresentation
To state a prima facie case
for negligent misrepresentation, a plaintiff must show:
(1) a misrepresentation (false statement of a material fact) by the defendant;
(2) supplied for the guidance of others in a business transaction;
(3) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions;
(4) the defendant was negligent in obtaining or communicating the false information;
(5) actual and reasonable reliance by the plaintiff, AND
(6) the false information proximately caused plaintiff’s damages.
Concealment
(an affirmative act intended to keep another from learning of a fact) is equivalent to a misrepresentation (a false statement of fact).
Generally, there is no duty to disclose information, UNLESS:
(a) a fiduciary relationship exists;
(b) it is necessary to correct an earlier mistake;
(c) active concealment of a material fact occurs; OR
(d) a person is selling real property and knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).
