LEGAL REMEDIES

Question 1

Contracts Checklist

Answer 1

• Expectation Damages
• Consequential Damages
• Incidental Damages
• Reliance Damages
• Liquidated Damages
• Nominal Damages

Question 2

Torts Checklist

Answer 2

• Compensatory Damages
  
  • General Damages
  • Special Damages
• Consequential Damages
• Nominal Damages
• Punitive Damages

Question 3

Expectation Damages

Answer 3

Expectation damages are those which result directly from the breach of the contract and are intended to put the plaintiff in the position he would have been in had the contract been performed.

(market price - contract price) + (consequential damages + incidental damages) - ($ saved)

Question 4

Consequential Damages - K

Answer 4

Consequential damages are those which result indirectly from the defendant’s breach. To recover consequential damages, the plaintiff must show that the damages (1) were foreseeable at the time of contract formation, (2) were caused by the defendant’s breach, and (3) can be calculated with reasonable certainty

Question 5

Incidental Damages

Answer 5

Incidental damages are reasonable incurred expense in the plaintiff’s attempt to remedy the breach of contract.

e.g. cost incurred by a seller in reselling, storing, or transporting goods that were rejected by a buyer, or costs incurred by the buyer in rejecting nonconforming goods

Question 6

Reliance Damages

Answer 6

Reliance damages are available as an alternative when expectation damages are too uncertain to calculate. They are incurred based upon expenditures made as a result of relying on the contract and are meant to put the plaintiff in the position he would have been in had the contract never existed. The plaintiff’s reliance on the contract must have been foreseeable.

*cannot recover both reliance and expectation damages but analyze both. Reliance damages can’t be more than K price

Question 7

Liquidated Damages

Answer 7

Liquidated damages are specified by the parties at the contract’s formation as a reasonable estimate of the actual damages that can be recovered in the event of a breach. Generally, liquidated damages are used when actual damages are too difficult to calculate.

*Liquidated damages that are unreasonable will be deemed a penalty and will not be enforced

Question 8

Nominal Damages

Answer 8

Nominal damages are available when the elements of a cause of action can be established but no substantial loss is sustained.

Question 9

Compensatory Damages

Answer 9

Compensatory damages are those which compensate the plaintiff for injury or loss suffered as a result of the defendant’s tortious act. The two types of compensatory damages are

(i) general and (ii) special

Question 10

Compensatory Damages - General

Answer 10

General damages are non-economic losses resulting from injury or harm suffered

Question 11

Compensatory Damages - Special Damages

Answer 11

Special Damages are economic losses such as medical bills, lost wages, or compensation for future earnings.

Question 12

Consequential Damages - Torts

Answer 12

Consequential damages are those which result indirectly from the defendant’s tortious conduct. To recover consequential damages, the plaintiff must show that the harm (1) was foreseeable, (2) was caused by the defendant’s tortious act, and (3) can be calculated with reasonable certainty.

Question 13

Nominal Damages

Answer 13

Nominal damages are available when the elements of a cause of action but no substantial loss is sustained.

Question 14

Punitive Damages

Answer 14

Punitive damages are awarded in addition to compensatory damages to punish the defendant for engaging in willful and wanton misconduct and deter future misconduct. Punitive damages must be proportionate to the actual damages awarded.

Question 15

Limitations on Recovery

Answer 15

Causation - There must be a causal relationship between the defendant’s conduct and the plaintiff’s harm

Certainty - The plaintiff must be able to prove damages with reasonable certainty

Duty to Mitigate - A plaintiff has a duty to reasonably mitigate his losses to the extent possible. The plaintiff’s recovery will be reduced for failing to mitigate damages.

Question 16

Equitable Remedies - Contracts

(checklist)

Answer 16

• Reformation
  
  • Mutual
  • Unilateral
• Rescission
• Specific Performance

Question 17

Equitable Remedies - Contracts and Torts

Answer 17

• Injunctions
  
  • Temporary Restraining Orders
  • Preliminary Injunction
  • Permanent Injunction

Question 18

Reformation

Answer 18

Reformation is a re-writing of a contract to accurately reflect the parties’ original intent. It is available when there is a valid written contract, but the parties overlook a mistake, or the contract resulted from fraud, misrepresentation, or duress. Reformation is unavailable if a valid equitable defense applies.

Question 19

Reformation - Mutual

Answer 19

The court may reform a contract when both parties are mistaken about an essential element of the contract.

Question 20

Reformation - Unilateral

Answer 20

The court may reform a contract when one party is mistaken about an essential element of the contract due to the other party’s fraudulent conduct or failure to cure the mistake.

Question 21

Rescission

Answer 21

Rescission cancels a contract due to invalid contract formation. If the contract is rescinded, the plaintiff must (1) give notice and (2) return any benefits received from the defendant. The plaintiff may also bring an action for replevin or restitution. Rescission is unavailable if a valid equitable defense applies or the plaintiff previously sued for damages under the contract.

Question 22

Specific Performance

Answer 22

Under specific performance, the plaintiff may request that the court order the defendant to perform the contract. The following elements must be met:

(1) a valid contract exists, with definite and certain terms
(2) the plaintiff has performed or is able to perform
(3) monetary damages are inadequate
(4) feasibility of the court’s enforcement
(5) no defenses exist

Question 23

Injunctions

Answer 23

An injunction is a court order that compels a party to act or refrain from acting

Question 24

Temporary Restraining Orders

Answer 24

Temporary restraining orders are issued for a short duration to maintain the status quo pending the preliminary injunction hearing. To obtain a temporary restraining order, the plaintiff must show

(1) a likely threat of irreparable harm if the TRO is not granted
(2) likely success on the merits of the underlying case
(3) the TRO is feasible for the court to enforce
(4) the balance of hardships is in the plaintiff’s favor
(5) no defenses exist

Question 25

Preliminary Injunction

Answer 25

Preliminary injunctions are issued before or during trial to maintain the status quo throughout the trial. Generally, they are effective until the court renders its final judgment. The defendant must be notified and given an opportunity to be heard before a preliminary injunction is issued. To obtain a preliminary injunction the plaintiff must show (1) a likely threat of irreparable harm if the injunction is not granted (2) likely success on the merits of the underlying case (3) the injunction is feasible for the court to enforce (4) the balance of hardships is in the plaintiff's favor (5) no defenses exist

Question 26

Permanent Injunction

Answer 26

Permanent injunctions are issued after the plaintiff has won his underlying case. To obtain a permanent injunction, the plaintiff must show (1) a likely threat of irreparable harm if the injunction is not granted (2) the injunction is feasible for the court to enforce (3) the balance of hardships is in the plaintiff's favor (4) no defenses exist

Question 27

Equitable Defenses - Contracts and Torts

Answer 27

Laches and Unclean Hands

Question 28

Laches

Answer 28

Laches is an available defense if the plaintiff (1) unreasonably delayed filing a cause of action, and (2) the delay causes prejudice to the defendant

Question 29

Unclean Hands

Answer 29

Unclean hands is an available defense if the plaintiff has engaged in unethical, illegal, or improper conduct connected to the lawsuit

Question 30

Restitution Remedies - Contracts and Torts

Answer 30

* Legal restitution * Money * Goods or Services * Replevin * Ejectment

Question 31

Restitution Remedies - Contracts

Answer 31

Quasi-Contract

Question 32

Restitution Remedies - Torts

Answer 32

* Constructive Trust * Tracing * Equitable Lien * Tracing * Additional Satisfaction

Question 33

Legal Restitution (Money Damages)

Answer 33

Restitution is available where the defendant is unjustly enriched because of a benefit conferred by the plaintiff. The plaintiff may recover to the extent that the defendant has been unjustly enriched.

Question 34

Legal Restitution - Money

Answer 34

If the benefit conferred is money, the plaintiff's recovery is the amount paid to the defendant

Question 35

Legal Restitution - Goods or Services

Answer 35

If the benefit conferred is goods or services, the plaintiff's recovery will be based on (i) the cost of providing the benefit, (ii) the market value of the goods or services, or (iii) the price specified in the agreement between the parties

Question 36

Replevin

Answer 36

Replevin in an action to recover personal property wrongfully taken by the defendant. To recover, the plaintiff must have the right to possess the property.

Question 37

Ejectment

Answer 37

Ejectment is an action to recover real property actually and wrongfully possessed by the defendant. To recover, the plaintiff must (1) have a right to possess the property, and (2) establish title

Question 38

Quasi-Contract (Implied-in-Law Contract)

Answer 38

A quasi-contract is created when (1) no valid contract exists, (2) but the plaintiff conferred a benefit upon the defendant (3) for which the plaintiff reasonably expected to get paid, (4) the defendant expressly or impliedly asked for the benefit, and (5) the defendant would be unjustly enriched if he were allowed to retain the benefit.

Question 39

Constructive Trust

Answer 39

Courts may impost a constructive trust if a defendant (1) unlawfully acquired property, (2) would be unjustly enriched if allowed to retain it, and (3) money damages are inadequate. Under a constructive trust, the defendant holds the unlawfully acquired property as a trustee and must convey it to the plaintiff. *(Note: a BFP who bought the property without knowledge of the facts giving rise to the constructive trust will prevail over the plaintiff)*

Question 40

Constructive Trust - Tracing

Answer 40

The plaintiff can reacquire his property through tracing and is entitled to any appreciation in the property's value

Question 41

Equitable Lien

Answer 41

The court may impose an equitable lien if a defendant (1) unlawfully acquired property, (2) would be unjustly enriched if allowed to retain it, and (3) money damages are inadequate. The court will compel the sale of the unlawfully acquired property and reimburse the plaintiff.

Question 42

Equitable Lien - Tracing

Answer 42

The plaintiff can reacquire his property through tracing but is NOT ENTITLED to any appreciation in the property's value

Question 43

Equitable Lien - Additional Satisfaction

Answer 43

The defendant will be liable to the plaintiff for any difference between the proceeds obtained from the sale and the money owed to plaintiff.