Equitable Remedies

Question 1

What is a temporary restraining order?

Answer 1

A TRO is a short-term injunction that is typically sought at the first stage of the plaintiff’s request for injunctive relief.

Its purpose is to maintain the status quo pending a hearing for a preliminary injunction, and it may be issued ex parte upon a sufficient showing of urgency.

Question 2

How long does a TRO last?

Answer 2

Federal: 14 days

CA: 15 days

Question 3

What are the elements of a TRO?

Answer 3

1) Plaintiff will suffer irreparable harm

2) Plaintiff is likely to succeed on the merits of their claim

3) Balancing of Equities (comparing defendant and third party’s harm) in Plaintiffs favor

Question 4

What is irreparable harm?

Answer 4

Plaintiff usually has to s how that there is a lack of an adequate remedy at law.

Look to see if there is property or a unique good involved!

Question 5

What is a preliminary injunction?

Answer 5

A preliminary injunction is a provisional remedy designed to maintain the status quo pending a trial.

It is issued after notice is given to the defendant and after the defendant is given an opportunity to be heard.

Lasts until trial.

Question 6

What are the elements of a preliminary injunction?

Answer 6

1) Plaintiff will suffer irreparable harm

2) Plaintiff is likely to succeed on the merits of their claim

3) Balancing of Equities (comparing defendant and third party’s harm) in Plaintiffs favor

Question 7

What is specific performance?

Answer 7

Specific performance is a remedy by which a party to a contract is compelled by court order to render their promised performance or a substitute.

Question 8

What are the elements of specific performance?

Answer 8

1) Existence of contract

2) Definite contract terms

3) Conditions for defendant’s performance must be satisfied (mutuality of performance)

4) Inequitable relief at law

5) Enforceability is feasible

6) No defenses

• Unclean Hands
• Laches

Question 9

What is Rescission?

Answer 9

Recission is the unmaking of a contract so to put parties in a place as if contract never existed.

Question 10

What are grounds for rescission?

Answer 10

1) Mutual Mistake

2) Unilateral Mistake

3) Fraudulent Misrepresentation

4) Non-Disclosure

Question 11

What is a mutual mistake?

Answer 11

Mutual mistake occurs when both parties are mistaken to essential element of contract. Voidable, if:

1) Mistake existed at time of K

2) Relates to basic assumption of K

3) Causes a material impact on transaction

4) Adversely affected party did not assume the risk

Question 12

What is a unliteral mistake?

Answer 12

Occurs when one party is mistaken as to essential element of contract, if:

1) Elements of mutual mistake are met

2) Enforcement of contract would be unconscionable or non-mistaken party caused mistake, and knew or should have known.

3) Absence of serious prejudice to the other party if granted.

Question 13

What is fraud/intentional misrepresentation?

Answer 13

For intentional misrepresentation the defendant must have:

1) **Intentionally or recklessly* misrepped a material fact

2) With intent to induce P’s reliance

3) P’s reliance was justified

4) P suffered monetary loss

Question 14

What are defenses to recession?

Answer 14

• Laches
• Unclean Hands
• Promissory Estoppel

Question 15

What is reformation?

Answer 15

Reformation is the modification of a contract by a court upon petition by a party.

Requires:

1) A valid prior agreement

2) Grounds

• Mutual Mistake (Scrivener’s Error)
• Unilateral Mistake
• Fraudulent Misrepresentation

3) No defenses

• Laches
• Unclean Hands
• SOF
• NOT PER

Question 16

What is a mutual mistake - Scrivener’s Error?

Answer 16

Writing may be conformed to intended prior agreement if:

1) Both parties were unaware of mistake

2) Resulted in:

• Omission of agreed to term
• Inclusion of not agreed term
• Altercation of agreed to term

Question 17

What are Punitive Damages?

Answer 17

Punitive damages are meant to punish the defendant who engages in serious misconduct with an improper state of mind.

While they are generally not available in breach of contract actions, they may be awarded if the defendant’s behavior also constitutes tortious conduct, as it does here.

Pursuant to the Due Process Clause, punitive damages cannot be grossly excessive.

Question 18

ESSAY TIP: What are common defenses to make when someone attempts to reform a contract?

Answer 18

1) Laches

2) Unclean Hands

3) SOF

• Does not prevent reformation of contract, especially when an essential term was missing or stated that would be required under SOF

4) PER

• Although PER will never be a basis against reformation, because a party is always allowed to introduce evidence to establish a mistake or fraud!

Question 19

ESSAY TIP: What are grounds for reformation?

Answer 19

1) Mutual Mistake - Scrievers Error

2) Unilateral Mistake

3) Fraudulent Misrepresentation

Question 20

What is non-disclosure?

Answer 20

Non-disclosure occurs when there is a duty to disclose and seller failed to disclose.

Can be a basis for recession and reformation! And to see damages for breach!

Question 21

WHen does a seller have a duty to disclose?

Answer 21

If residential property: Seller has duty to disclose all known material latent defects.

If commercial property: Usually state specific, and up to parties to negotiate.

Question 22

What is a **material defect?* re: non-disclosure?

Answer 22

Defect must:

1) Substantially affect value of property

2) Impact health or safety of a resident occupier

OR

3) Affects desirability of property.

Question 23

When reformation is avaliable to cure because of a mistake, may the opposing party attempt to obtain recession?

Answer 23

No!

When reformation is available to cure a mistake, neither party can avoid the contract.