Equity Flashcards
ILH Done.
1
Q
Injunctive relief
A
D is ordered (enjoined) TO DO or REFRAIN FROM DOING something.
2
Q
Permanent injunction issued:
A
AFTER full trial on the merits
When in doubt, go with permanent injunction
3
Q
Preliminary injunction issued:
A
PENDING trial on its merits.
4
Q
2 part test for preliminary injunctive relief:
A
- P must establish that there is IRREPARABLE injury, AND
2. Likelihood of success.
5
Q
Preliminary injunctive relief bond:
A
Impose a bond on P to reimburse D i the injunction injures him and P does not succeed.
6
Q
Preliminary injunctive relief model bar answer
A
“In issue is whether P can obtain preliminary injunctive relief. To do so P must meet 2 part test:
- Irreparable injury (facts in time frame context)
- Likelihood of success: Discuss ‘probability’ - impose bond requirement.
7
Q
Temporary Restraining Order (TRO)
A
Issued PENDING a hearing to determine whether preliminary injunction should issue.
Test is IDENTICAL to that of preliminary injunction.
8
Q
For emergencies TRO can be:
A
Ex Parte. Thus:
- Notice: None required
- Adversarial Proceedings: None required.
9
Q
TRO’s are limited to:
A
10 days
14 in federal court
10
Q
Permanent Injunction
5 Part Checklist
“I Put Five Bucks Down”
A
- Inadequate legal remedy
- Protectable interest requirement
- Feasibility of Enforcement
- Balancing of Hardships
- Defenses
11
Q
Inadequate legal remedy alternative rule:
A
P must establish there is NO VIABLE LEGAL REMEDY alternative.
12
Q
4 reasons money damages will be inadequate:
A
- IRREPARABLE injury.
- Too speculative
- It’s a ‘continuing wrong’
- D is insolvent
13
Q
Protectable interest requirement
A
P must establish there is a ‘protectable interest’ involved.
This must be in the answer.
14
Q
Feasibility of enforcement
A
P must establish that it is feasible to ENFORCE the injunction.
15
Q
Negative Injunctions
A
STOP doing something. (No enforcement problem)
16
Q
Mandatory injunctions
A
Must affirmatively perform an act.
Might be an enforcement problem.
17
Q
Balancing of hardships
A
P’s benefit v. D’s hardship.
18
Q
4 balancing of hardship rules
A
- There must be SUBSTANTIALLY more hardship than benefit.
- Even then, there will be NO balancing of hardship if D’s conduct is WILLFUL.
- If you decide to balance hardships, in whole or in part, consider giving P money damages.
- Hardship to PUBLIC is also (lastly) taken into account.
19
Q
Defenses
A
- Unclean hands
2. Laches
20
Q
Unclean hands
A
P’s improper conduct will cut off the right to equitable relief.
21
Q
With unclean hands, P’s improper conduct:
A
MUST be related to the lawsuit.
22
Q
Laches
A
An ‘inequitable delay’ by P seeking equitable relief cuts off the right to it.
23
Q
Laches test:
A
- Clock starts to run when P KNOWS of the injury
2. The delay cuts off the right to relief when it is BOTH unreasonable AND prejudicial to D.
24
Q
Constructive Trust
A
Imposed on improperly acquired property to which D now has title.
D MUST RETURN property to P.
25
Equitable Lien
Imposed on improperly acquired property to which D now has title.
Property will be subject to an IMMEDIATE COURT-DIRECTED SALE.
Proceeds go to P. If the proceeds are LESS THAN the FMV of the property when it was taken a DEFICIENCY JUDGMENT will issue for the difference and can be used against D's other assets.
26
When can constructive trusts and equitable liens be used?
ONLY when D has title to the property.
27
If the property value subsequent to taking goes UP, then:
Constructive trust
28
If the property value subsequent to taking goes DOWN, then:
Equitable lien.
29
Specific Performance
5 Part Checklist
"Vacant Properties Intensify Foreclosure Disaster"
1. Contract is valid.
2. Performance of P must be ASSURED.
3. Inadequate legal remedy alternative.
4. Feasibility of Enforcement
5. Defenses
30
Uniqueness: Personal Property
Personal property is NOT UNIQUE and damages are adequate.
31
3 Exceptions to uniqueness of personal property rule.
1. One of a kind or VERY rare: Rembrandt.
2. Personal significance to buyer.
3. Circumstances make chattel unique.
(Uniqueness is tested at the time of litigation.)
32
Enforcement of personal services contracts
NOT specifically enforceable.
1. Enforcement problem
2. Involuntary servitude.
33
Covenant Not to Compete Enforceable if:
| 2 part test
1. The services are UNIQUE.
| 2. The scope (geographic and durational) is reasonable.
34
Equitable Defenses
1. Unclean hands
2. Laches
3. Unconscionability
35
Contract defenses
1. Mistake (bilateral)
2. Misrepresentation
3. Statute of Frauds
36
Unconscionability
1. More than simply a bad deal.
| 2. Tested at the time of CONTRACT FORMATION.
37
Rescission
The original K is considered voidable and rescinded.
38
2 step analysis of rescission:
| "Good Dog"
1. Are there grounds for rescission?
| 2. Are there valid defenses?
39
7 General grounds for rescission
They all relate to CONTRACT FORMATION.
1. Mistake
2. Misrepresentation
3. Coercion
4. Undue influence
5. Lack of capacity
6. Failure of consideration
7. Illegality.
40
Mutual Mistake
Must be MATERIAL FACT for rescission.
41
Unilateral mistake, general rule: Rescission:
will be denied.
42
Rescission exception to unilateral mistake general rule:
The NON-MISTAKEN party knows or SHOULD HAVE KNOWN of the mistake.
43
Misrepresentation: Rescission will be:
Granted. But P must show that they ACTUALLY RELIED on the misrepresentation.
44
With rescission non-defenses (negligence of P):
WILL NOT WORK.
45
Defenses to rescission
1. Unclean hands
| 2. Laches
46
Reformation:
Changes written agreement to conform with parties' original understanding.
47
3 step analysis for reformation:
| "Very Good Dog"
1. valid K.
2. grounds for reformation.
3. defenses.
48
Defenses to reformation
1. Unclean hands
| 2. Laches
49
Mutual mistake. Reformation will be:
granted.
50
Unilateral mistake. Reformation will be:
denied.
51
Exception: Unilateral mistake reformation will be:
granted. Where the non-mistaken party KNOWS of the mistake.
52
Misrepresentation. Reformation will be:
granted.
Available for BOTH innocent and intentional misrepresentations. Rewriting reflects EXPRESSED INTENT of the parties.
53
Injunctive relief
D is ordered (enjoined) TO DO or REFRAIN FROM DOING something.
54
Permanent injunction issued:
AFTER full trial on the merits
When in doubt, go with permanent injunction
55
Preliminary injunction issued:
PENDING trial on its merits.
56
2 part test for preliminary injunctive relief:
1. P must establish that there is IRREPARABLE injury, AND
| 2. Likelihood of success.
57
Preliminary injunctive relief bond:
Impose a bond on P to reimburse D i the injunction injures him and P does not succeed.
58
Preliminary injunctive relief model bar answer
"In issue is whether P can obtain preliminary injunctive relief. To do so P must meet 2 part test:
1. Irreparable injury (facts in time frame context)
2. Likelihood of success: Discuss 'probability' - impose bond requirement.
59
Temporary Restraining Order (TRO)
Issued PENDING a hearing to determine whether preliminary injunction should issue.
Test is IDENTICAL to that of preliminary injunction.
60
For emergencies TRO can be:
Ex Parte. Thus:
1. Notice: None required
2. Adversarial Proceedings: None required.
61
TRO's are limited to:
10 days
| 14 in federal court
62
Permanent Injunction
5 Part Checklist
"I Put Five Bucks Down"
1. Inadequate legal remedy
2. Protectable interest requirement
3. Feasibility of Enforcement
4. Balancing of Hardships
5. Defenses
63
Inadequate legal remedy alternative rule:
P must establish there is NO VIABLE LEGAL REMEDY alternative.
64
4 reasons money damages will be inadequate:
1. IRREPARABLE injury.
2. Too speculative
3. It's a 'continuing wrong'
4. D is insolvent
65
Protectable interest requirement
P must establish there is a 'protectable interest' involved.
This must be in the answer.
66
Feasibility of enforcement
P must establish that it is feasible to ENFORCE the injunction.
67
Negative Injunctions
STOP doing something. (No enforcement problem)
68
Mandatory injunctions
Must affirmatively perform an act
Might be an enforcement problem
69
Balancing of hardships
Equity balances P's benefit v. D's hardship.
70
4 balancing of hardship rules
1. There must be SUBSTANTIALLY more hardship than benefit.
2. Even then, there will be NO balancing of hardship if D's conduct is WILLFUL.
3. If you decide to balance hardships, in whole or in part, consider giving P money damages.
4. Hardship to PUBLIC is also (lastly) taken into account.
71
Defenses
1. Unclean hands
| 2. Laches
72
Unclean hands
P's improper conduct will cut off the right to equitable relief.
73
With unclean hands, P's improper conduct:
MUST be related to the lawsuit.
74
Laches
An 'inequitable delay' by P seeking equitable relief cuts off the right to it.
75
Laches test:
1. Clock starts to run when P KNOWS of the injury
| 2. The delay cuts off the right to relief when it is BOTH unreasonable AND prejudicial to D.
76
Constructive Trust
Imposed on improperly acquired property to which D now has title.
D MUST RETURN property to P.
77
Equitable Lien
Imposed on improperly acquired property to which D now has title.
Property will be subject to an IMMEDIATE COURT-DIRECTED SALE.
Proceeds go to P. If the proceeds are LESS THAN the FMV of the property when it was taken a DEFICIENCY JUDGMENT will issue for the difference and can be used against D's other assets.
78
When can constructive trusts and equitable liens be used?
ONLY when D has title to the property.
79
If the property value subsequent to taking goes UP, then:
Constructive trust
80
If the property value subsequent to taking goes DOWN, then:
Equitable lien.
81
Specific Performance
5 Part Checklist
"Vacant Properties Intensify Foreclosure Disaster"
1. Contract is valid.
2. Performance of P must be ASSURED.
3. Inadequate legal remedy alternative.
4. Feasibility of Enforcement
5. Defenses
82
Uniqueness: Personal Property
Personal property is NOT UNIQUE and damages are adequate.
83
3 Exceptions to uniqueness of personal property rule.
1. One of a kind or VERY rare: Rembrandt.
2. Personal significance to buyer.
3. Circumstances make chattel unique.
(Uniqueness is tested at the time of litigation.)
84
Enforcement of personal services contracts
NOT specifically enforceable.
1. Enforcement problem
2. Involuntary servitude.
85
Covenant Not to Compete Enforceable if:
| 2 part test
1. The services are UNIQUE.
| 2. The scope (geographic and durational) is reasonable.
86
Equitable Defenses
1. Unclean hands
2. Laches
3. Unconscionability
87
Contract defenses
1. Mistake (bilateral)
2. Misrepresentation
3. Statute of Frauds
88
Unconscionability
1. More than simply a bad deal.
| 2. Tested at the time of CONTRACT FORMATION.
89
Rescission
The original K is considered voidable and rescinded.
90
2 step analysis of rescission:
| "Good Dog"
1. Are there grounds for rescission?
| 2. Are there valid defenses?
91
7 General grounds for rescission
They all relate to CONTRACT FORMATION.
1. Mistake
2. Misrepresentation
3. Coercion
4. Undue influence
5. Lack of capacity
6. Failure of consideration
7. Illegality.
92
Mutual Mistake
Must be MATERIAL FACT for rescission.
93
Unilateral mistake, general rule: Rescission:
will be denied.
94
Rescission exception to unilateral mistake general rule:
The NON-MISTAKEN party knows or SHOULD HAVE KNOWN of the mistake.
95
Misrepresentation: Rescission will be:
Granted. But P must show that they ACTUALLY RELIED on the misrepresentation.
96
With rescission non-defenses (negligence of P):
WILL NOT WORK.
97
Defenses to rescission
1. Unclean hands
| 2. Laches
98
Reformation:
Changes written agreement to conform with parties' original understanding.
99
3 step analysis for reformation:
| "Very Good Dog"
1. valid K.
2. grounds for reformation.
3. defenses.
100
Defenses to reformation
1. Unclean hands
| 2. Laches
101
Mutual mistake. Reformation will be:
granted.
102
Unilateral mistake. Reformation will be:
denied.
103
Exception: Unilateral mistake reformation will be:
granted. Where the non-mistaken party KNOWS of the mistake.
104
Misrepresentation. Reformation will be:
granted.
Available for BOTH innocent and intentional misrepresentations. Rewriting reflects EXPRESSED INTENT of the parties.
