GA REMEDIES- THEMIS OUTLINE 2

Question 1

What is an injunction?

Answer 1

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

Question 2

What are the two types of injunctions?

Answer 2

Injunctions can be either mandatory (requiring action) or prohibitory (requiring refraining from action).

Question 3

What is a final injunction?

Answer 3

A final injunction, also known as a ‘permanent injunction,’ is issued to prevent the violation of the plaintiff’s rights or to restore rights that have been violated.

Question 4

What is a temporary restraining order (TRO)?

Answer 4

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

Question 5

What are the requirements for obtaining an injunction?

Answer 5

To obtain an injunction, the plaintiff must show: 1) a substantial threat of irreparable harm, 2) the plaintiff’s hardship outweighs that of the defendant, and 3) the public interest will not be disserved.

Question 6

What is the purpose of a prejudgment injunction?

Answer 6

A prejudgment injunction is sought to prevent irreparable harm to the plaintiff until a court action is resolved.

Question 7

What is the standard for issuing a TRO without notice?

Answer 7

A TRO without notice may be issued if immediate and irreparable injury will result and the applicant’s attorney certifies efforts to notify the adverse party.

Question 8

What must a plaintiff establish for a prejudgment injunction?

Answer 8

The plaintiff must show: 1) a substantial threat of irreparable harm, 2) the plaintiff’s hardship outweighs that of the defendant, 3) likelihood of success on the merits, and 4) public interest will not be disserved.

Question 9

What is the role of security in obtaining a TRO?

Answer 9

The court may require the applicant for a TRO to give security for payment of costs and damages incurred by any party wrongfully enjoined.

Question 10

What are the defenses against an injunction?

Answer 10

Defenses against an injunction include equitable defenses like laches and unclean hands, as well as constitutional restrictions.

Question 11

What is the significance of the balancing of equities in injunctions?

Answer 11

The balancing of equities assesses whether the plaintiff’s hardship if the injunction is not issued outweighs the hardship on the defendant.

Question 12

What is required for an injunction against future acts?

Answer 12

The plaintiff must show a real and immediate threat that future acts will occur.

Question 13

What is the court’s discretion regarding injunctions?

Answer 13

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

Question 14

What happens if a second application for an injunction is made?

Answer 14

A second application for an injunction must generally be based on a change in circumstances or new facts since the first ruling.

Question 15

What is the enforcement mechanism for an injunction?

Answer 15

An injunction is enforceable through an attachment for contempt, and the court can punish contempt by fines or imprisonment.

Question 16

What is the requirement for a final injunction regarding irreparable harm?

Answer 16

The plaintiff must establish the lack of an adequate remedy at law to show irreparable harm if the injunction is not issued.

Question 17

What is the court’s authority regarding contempt for injunctions?

Answer 17

The superior courts can punish contempt by fines not exceeding $1,000, by imprisonment not exceeding 20 days, or both.

Question 18

What is the significance of the ‘disproportionate burden’ test?

Answer 18

The ‘disproportionate burden’ test assesses whether the hardship on the defendant to remove a structure is significantly greater than the injury to the plaintiff.

Question 19

What can a plaintiff seek when the defendant interferes with easement rights?

Answer 19

A plaintiff may seek an injunction, which can be mandatory or prohibitory.

Example: Mandatory injunction could order the removal of a fence across an easement, while a prohibitory injunction could prevent the use of more parking spaces than permitted under a lease.

Question 20

When is an injunction not granted in easement cases?

Answer 20

An injunction is not granted when the court concludes that the defendant has satisfied the disproportionate-hardship test; in such cases, the plaintiff is entitled to damages.

Question 21

What is self-help in the context of easements?

Answer 21

The plaintiff may enter the defendant’s land to remove anything that interferes with the easement, provided it does not breach the peace.

Question 22

What is waste in property law?

Answer 22

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

Question 23

What remedy is available to prevent affirmative waste?

Answer 23

The property interest owner is entitled to an injunction to prevent affirmative waste, but not generally for permissive waste.

Question 24

What is a private nuisance?

Answer 24

In a private nuisance action, a plaintiff generally cannot be denied an injunction on the grounds that damages are an adequate remedy.

Question 25

What must be determined to ascertain if a private nuisance exists?

Answer 25

An initial balancing of the equities is required to determine if the defendant’s interference is unreasonable.

Question 26

When is a plaintiff entitled to an injunction in a public nuisance action?

Answer 26

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

Question 27

What can a person do if wrongfully in possession of personal property?

Answer 27

The owner may seek to regain possession through an injunction, especially if the property is unique.

Question 28

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

Answer 28

The remedy is generally damages, but if the conduct is ongoing, the plaintiff can seek an injunction.

Question 29

Can a plaintiff seek an injunction for defamation?

Answer 29

Generally, a plaintiff cannot seek an injunction for personal defamation, but may do so for business-related defamation.

Question 30

What can a plaintiff do if their privacy interests are invaded?

Answer 30

A plaintiff may seek an injunction, as damages do not offer sufficient protection.

Question 31

What is the remedy for interference with a contract?

Answer 31

The plaintiff can seek an injunction to prevent future interference, as damages are usually inadequate.

Question 32

What is required for specific performance to be granted?

Answer 32

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

Question 33

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

Answer 33

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

Question 34

When are damages considered inadequate?

Answer 34

Damages are inadequate if the property is unique or has special value to the transferee.

Question 35

What factors can lead to the denial of specific performance?

Answer 35

Factors include sharp practices, mistake, unreasonable hardship, and grossly inadequate consideration.

Question 36

What is equitable conversion?

Answer 36

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

Question 37

What is an equitable lien in property sales?

Answer 37

The seller has an equitable lien to secure payment, while the buyer has a vendee’s lien to ensure repayment in case of breach.

Question 38

Who bears the risk of loss in a land sales contract?

Answer 38

The risk of loss is placed on the buyer, who can be compelled to purchase the damaged property if not the seller’s fault.

Question 39

What is a vendor’s lien?

Answer 39

A vendor’s lien is a property lien to secure payment of the purchase price.

Question 40

What is a vendee’s lien?

Answer 40

A vendee’s lien is an equitable lien that a buyer has against the property to ensure repayment in the event of the seller’s breach.

Question 41

Who bears the risk of loss in a property sale?

Answer 41

The risk of loss, such as from fire, is placed on the buyer.

Question 42

Can a seller compel a buyer to purchase damaged property?

Answer 42

Yes, if the loss was not the seller’s fault and the seller had satisfied any condition precedent to the sale.

Question 43

How can a party protect itself from the risk of loss?

Answer 43

By obtaining insurance.

Question 44

Can a party compel payment from an insurer on another party’s policy?

Answer 44

No, absent assignment of the rights to the insurance policy.

Question 45

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

Answer 45

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

Question 46

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

Answer 46

The personal representative must pay the purchase price from the estate’s personal assets before distribution to legatees.

Question 47

When does equitable conversion occur in an option contract?

Answer 47

Equitable conversion does not occur until the option has been exercised.

Question 48

What happens if the owner of the property dies before the option is exercised?

Answer 48

The property passes to the owner’s devisees, who must sell it to the option holder when the option is exercised.

Question 49

What is the effect of a judgment against the seller after a contract is executed?

Answer 49

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

Question 50

What is the effect of a judgment against the buyer after a sales contract?

Answer 50

The doctrine of equitable conversion usually allows a judgment lien to attach to the buyer’s property interest.

Question 51

What can a plaintiff obtain if an oral contract for land is unenforceable due to the Statute of Frauds?

Answer 51

Specific performance if the defendant admits the existence of the contract.

Question 52

What can a buyer seek if the seller has accepted full payment of the purchase price?

Answer 52

Specific performance.

Question 53

What justifies specific performance if the buyer possesses the property?

Answer 53

If the buyer has either paid a portion of the purchase price or made improvements to the property.

Question 54

What is the general rule regarding specific performance in personal-property contracts?

Answer 54

Specific performance is generally not available unless the personal property is unique or of personal significance.

Question 55

When may a buyer seek specific performance under UCC?

Answer 55

When the goods are unique or when the buyer is unable to effect cover.

Question 56

What action can a seller take when the buyer has accepted the goods?

Answer 56

The seller may maintain an action for the contract price of the goods.

Question 57

Under what circumstances can a seller reclaim goods from a buyer?

Answer 57

If the buyer received the goods on credit, was insolvent at that time, and the seller acts within 10 days after receipt.

Question 58

What must a contract involving disposition of property upon death include?

Answer 58

It must be express, in writing, and signed by the obligor.

Question 59

Can an employee force an employer to employ them?

Answer 59

No, an employee cannot force an employer to employ them.

Question 60

Is a promise to render a personal service specifically enforceable?

Answer 60

No, it is not specifically enforceable unless the service is unique.

Question 61

What is generally not enforceable through an injunction in employment contracts?

Answer 61

An employee’s promise to engage in full-time or exclusive employment.

Question 62

What is required for a covenant not to compete to be enforced?

Answer 62

The restrictions must be reasonable in time, geographic area, and scope of prohibited activities.

Question 63

Who can enforce a covenant not to compete?

Answer 63

Employers and employees, distributors and manufacturers, lessors and lessees, partners, franchisors and franchisees, sellers and buyers of a business, or two or more employers.

Question 64

What is required for a former employee to be subject to a post-employment restriction?

Answer 64

They must have customarily solicited customers, engaged in sales, performed managerial duties, or been a key employee.