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Remedies > GA REMEDIES- THEMIS OUTLINE > Flashcards

GA REMEDIES- THEMIS OUTLINE Flashcards

1
Q

What is the original equitable jurisdiction vested in?

A

The original equitable jurisdiction is vested in the superior courts.

Ga. Code Ann. § 23-1-1.

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2
Q

When is an equitable remedy available?

A

An equitable remedy is available only when a remedy at law is unavailable, inadequate, or incomplete.

Ga. Code Ann. § 23-1-4; Cantrell v. Henry Cnty., 301 S.E.2d 870 (Ga. 1983).

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3
Q

What is the principle of superior equity?

A

An equitable remedy is available only to the party whose equities are superior, meaning the hardship on the plaintiff must exceed the hardship on the defendant.

Ga. Code Ann.§ 23-1-11.

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4
Q

What governs the granting of an equitable remedy?

A

The granting of an equitable remedy rests within the sound discretion of the court, subject to challenge for abuse of discretion or lack of evidence.

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5
Q

How is an equitable remedy generally enforced?

A

An equitable remedy is enforced by attachment of the person for contempt.

Ga. Code Ann. § 23-4-37.

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6
Q

What is an injunction?

A

An injunction is a court order directing a person to act or refrain from acting, including acts that are illegal or contrary to equity and good conscience.

Ga. Code Ann. § 9-5-1.

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7
Q

What is the discretionary nature of an injunction?

A

The issuance and form of an injunction rests within the sound discretion of the court and is subject to challenge for abuse of discretion or lack of evidence.

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8
Q

What factors must a plaintiff establish to obtain an injunction?

A

The plaintiff must show a substantial threat of irreparable harm, that their hardship outweighs the defendant’s, and that the public interest will not be disserved.

Unified Gov’t v. Stiles Apartments, Inc., 723 S.E.2d 681 (Ga. 2012).

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9
Q

What is a temporary restraining order (TRO)?

A

A TRO is an injunction for a short period to preserve the status quo until a preliminary injunction hearing can be held.

Ga. Code Ann.§ 9-11-65(b).

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10
Q

What are the requirements for issuing a TRO without notice?

A

Immediate and irreparable injury must be established, and the applicant’s attorney must certify efforts to notify the adverse party.

United Food & Commercial Workers Union v. Amberjack, Ltd., 321 S.E.2d 736 (Ga. 1984).

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11
Q

What is an interlocutory injunction?

A

An interlocutory injunction is issued before or during a trial and is effective until a final judgment is made.

Ga. Code Ann. § 9-11-65(a).

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12
Q

What must a plaintiff establish for a prejudgment injunction?

A

The plaintiff must show a substantial threat of irreparable harm, that their hardship outweighs the defendant’s, a likelihood of success on the merits, and that the public interest will not be disserved.

Unified Gov’t v. Stiles Apartments, Inc., 723 S.E.2d 681 (Ga. 2012).

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13
Q

What is a final injunction?

A

A final injunction is issued to prevent the violation of the plaintiff’s rights or to restore rights that have been violated, and it requires a hearing and a final decree.

Ga. Code Ann. § 9-5-10.

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14
Q

What defenses can be raised against an injunction?

A

An injunction is subject to equitable defenses such as laches and unclean hands, as well as constitutional restrictions.

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15
Q

What is the appropriate remedy for harms to real property?

A

An injunction is generally appropriate because damages are inadequate due to the unique nature of real property interests.

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16
Q

Under what circumstances can a plaintiff seek an injunction for trespass?

A

A plaintiff may seek an injunction to prevent future trespass if the injury is irreparable, the defendant is insolvent, or if repeated trespasses are anticipated.

Ga. Code Ann. § 9-5-4.

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17
Q

What is required for a mandatory injunction in cases of encroachment?

A

If the defendant has notice of the encroachment, the plaintiff is entitled to a mandatory injunction for removal. If not, the court weighs the equities to determine if the injunction should be granted.

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18
Q

What is the ‘disproportionate burden’ test in the context of injunctions?

A

It is a form of the general ‘balancing of the hardships’ requirement for injunctions.

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19
Q

What is the usual entitlement of a plaintiff when denied an injunction?

A

The plaintiff is usually entitled to damages.

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20
Q

What can a plaintiff seek an injunction for regarding real property?

A

To prevent the defendant from injuring or destroying the plaintiff’s real property.

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21
Q

What is severance in the context of seeking an injunction?

A

It refers to preventing a defendant’s future trespass to engage in severance, such as removing things attached to the plaintiff’s land.

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22
Q

What is a mandatory injunction in relation to trespass?

A

It requires the defendant to remove things placed on or in the plaintiff’s land and to prevent future such actions.

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23
Q

When can a plaintiff seek an injunction regarding easement rights?

A

When the defendant interferes with the plaintiff’s easement rights.

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24
Q

What types of injunctions can be sought for easement rights?

A

Mandatory or prohibitory injunctions.

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25
Q

What is waste in property law?

A

The transformation of property by a person rightfully in possession that detrimentally affects another’s interest in the same property.

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26
Q

What is a private nuisance action?

A

A plaintiff generally cannot be denied an injunction on the grounds that damages are an adequate remedy.

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27
Q

What is the general entitlement in a public nuisance action?

A

A plaintiff is generally entitled to an injunction when criminal punishment is an inadequate remedy.

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28
Q

What can a plaintiff seek if wrongfully dispossessed of personal property?

A

An injunction to regain possession.

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29
Q

What is the general remedy for personal injury due to tortious conduct?

A

Damages.

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30
Q

When can a plaintiff seek an injunction for defamation?

A

When the defamation relates to the plaintiff’s business activities.

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31
Q

What is the legal remedy for privacy torts?

A

A plaintiff may seek an injunction when their privacy interests have been invaded.

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32
Q

What is the remedy for interference with a contract?

A

The plaintiff can seek an injunction against the defendant to prevent future interference.

33
Q

What is specific performance?

A

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

34
Q

What are the requirements for a court to grant specific performance?

A

There must be a contract, the terms must be certain, conditions for performance must be satisfied, damages must be inadequate, relief must be equitable, and enforcement must be feasible.

35
Q

What is required for the existence of a contract?

A

The basic requirements of offer, acceptance, and consideration must be established.

36
Q

What is the significance of certainty of terms in a contract?

A

Certainty of terms is a basic requirement for enforceability; without it, the contract does not exist.

37
Q

What must be satisfied to compel specific performance?

A

Any conditions precedent to that performance must have been satisfied or excused.

38
Q

What does ‘time is of the essence’ mean in a contract?

A

It means that one party’s obligation must be performed within a predetermined period, or they lose their rights under the contract.

39
Q

When are damages considered inadequate?

A

When the property to be transferred is unique or has a special value to the transferee.

40
Q

What is the effect of a liquidated-damages provision on specific performance?

A

It does not preclude specific performance unless it states that it is the sole remedy for breach.

41
Q

What factors can lead to the denial of specific performance?

A

Unfairness, sharp practices, mistake, hardship, and inadequate consideration.

42
Q

What is the feasibility of enforcement in specific performance?

A

A court will not enforce a promise if it imposes disproportionate burdens relative to the advantages gained.

43
Q

Who is entitled to specific performance in a land sales contract?

A

Both the seller and the buyer of real property are entitled to specific performance.

44
Q

What happens if a seller cannot fully perform under a land sales contract?

A

Either party can seek specific performance with an abatement of the purchase price.

45
Q

What is equitable conversion in real property sales?

A

After a sales contract is entered into, the seller holds only legal title, while equitable title passes to the buyer.

46
Q

What happens if the buyer declines to accept property due to seller’s materially flawed performance?

A

The buyer is entitled to damages for breach of contract.

Ga. Code Ann. § 23-2-135.

47
Q

What is equitable conversion?

A

Equitable conversion impacts the rights of parties in a real property sale, where the seller holds legal title and the buyer holds equitable title after a sales contract is entered.

48
Q

In what situations does equitable conversion apply?

A

Equitable conversion applies to contracts for the sale of real property and other situations where there is a duty to convey property, such as a personal representative selling real property under a will.

49
Q

What is an equitable lien?

A

The seller has an equitable lien (vendor’s lien) to secure payment of the purchase price, and the buyer who has partially paid also has an equitable lien (vendee’s lien) for repayment in case of seller’s breach.

50
Q

Who bears the risk of loss in a property sale?

A

The buyer bears the risk of loss, such as from fire, unless the loss was the seller’s fault.

Phillips v. Bacon, 267 S.E.2d 249 (Ga. 1980).

51
Q

How can a party protect against risk of loss?

A

A party may obtain insurance to protect against risk of loss, but cannot compel payment from the insurer of the other party’s policy without assignment of rights.

52
Q

What happens if the seller dies after the contract is executed?

A

The seller’s heirs or devisees hold the property in trust for the buyer and must sell it to them.

53
Q

What is the effect of the buyer’s death after the contract is executed?

A

The personal representative must pay the purchase price from the estate’s personal assets, and the property is distributed to the buyer’s devisees or heirs.

54
Q

When does equitable conversion occur in an option contract?

A

Equitable conversion does not occur until the option is exercised; if the owner dies before exercise, the property passes to the owner’s devisees.

55
Q

What happens when a judgment is entered against the seller after a sales contract?

A

States are divided on whether equitable conversion prevents a judgment lien on the seller’s property interest.

56
Q

What is the Statute of Frauds in relation to oral contracts for land transfer?

A

An oral contract is unenforceable under the Statute of Frauds, but specific performance can be sought if the defendant admits the contract’s existence.

57
Q

When can specific performance be sought in personal property contracts?

A

Specific performance is available for unique personal property or when the defendant’s insolvency prevents recovery of damages.

58
Q

What remedies are available to a seller under UCC?

A

The seller may maintain an action for the contract price if the buyer has accepted the goods or reclaim the goods under limited circumstances.

59
Q

What are the requirements for a contract involving disposition of property upon death?

A

Such contracts must be express, in writing, and signed by the obligor to be enforceable.

60
Q

Can an employee force an employer to employ them?

A

No, an employee cannot force an employer to employ them; damages are an adequate remedy.

61
Q

What is the enforceability of a promise to render personal service?

A

Such promises are not specifically enforceable due to public policy against involuntary servitude.

62
Q

What is a covenant not to compete?

A

A covenant not to compete may be enforced if the restrictions are reasonable in time, geographic area, and scope.

63
Q

What is the presumption regarding duration restrictions for former employees?

A

A duration restriction on competition is presumed reasonable if it spans no more than two years after employment termination.

64
Q

What happens if a covenant is too broad?

A

A Georgia court may strike the offending language and preserve the remainder of the agreement.

65
Q

What is rescission?

A

Rescission is the avoidance or unmaking of a contract, often followed by restitution to place parties in their pre-contract positions.

66
Q

What is the difference between void and voidable contracts?

A

A void contract is unenforceable from the outset, while a voidable contract may be enforced until one party chooses to void it.

67
Q

What is rescission in contract law?

A

Rescission is the cancellation or avoidance of an otherwise enforceable agreement, applicable to voidable contracts and also as a remedy for void contracts.

68
Q

What is the difference between a void and voidable contract?

A

A void contract is unenforceable from the start, while a voidable contract is valid until one party chooses to void it.

69
Q

What are common grounds for a contract to be void or voidable?

A

Common grounds include fraud, mistake, lack of consideration, lack of capacity, and illegality.

70
Q

What must be included when pleading fraud?

A

Fraud must be pied with particularity.

Ga. Code Ann.§ 9-11-9(b).

71
Q

What is required before bringing a suit for rescission based on fraud?

A

The defrauded party must restore or offer to restore whatever they received as a result of the contract.

72
Q

What are exceptions to the restoration requirement in fraud cases?

A

Restoration is not required if it is impossible or unreasonable, or if the benefit was disposed of before discovering grounds for rescission.

73
Q

What rights does a seller have when a contract is rescinded for fraud?

A

A seller has the right to recover the goods, which is generally superior to the rights of others who acquired the goods.

74
Q

What must be included when pleading mistake?

A

Mistake must also be pied with particularity.

Ga. Code Ann.§ 9-11-9(b).

75
Q

Can unilateral mistakes lead to rescission?

A

Yes, both unilateral and mutual mistakes can form the basis for rescission.

76
Q

What types of mistakes can serve as grounds for rescission?

A

Both mistakes of law and mistakes of fact can serve as grounds for rescission.

77
Q

Can ignorance of fact serve as grounds for equitable relief?

A

No, mere ignorance of fact absent fraud cannot serve as grounds for equitable relief.

78
Q

What happens if a mistake is the result of negligence?

A

The mistaken party is generally not entitled to equitable relief if the mistake is due to negligence.

Remedies (5 decks)

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