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Remedies > Midterm > Flashcards

Midterm Flashcards

1
Q

Compensatory damages rule

A

Awarded to p to compensate for injury or loss. Measured by monetary value of P’s harm (trying to make p whole)
-The measure is the value of the property at the time of the embezzlement/conversion.

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2
Q

Two types of compensatory damages

A

General and special

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3
Q

General compensatory damages

A

Noneconomic losses directly attributable to tort that all Ps would have because they flow as a natural result of the tort (pain and suffering)

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4
Q

Special compensatory damages

A

Economic losses directly attributable to the tort that some Ps may have and are unique to each specific P (medical bills, lost wages)

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5
Q

Limitations on compensatory damages

A
  1. Causation
  2. Foreseeability
  3. Certainty
  4. Unavoidable (duty to mitigate)
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6
Q

Causation limitation

A

Damages must be caused by tortious act. Use but for test

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7
Q

Foreseeability limitation

A

Damages must be foreseeable by reasonable person in tortfeasor’s position at the time of the tortious act

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8
Q

Certainty limitation

A

Damages must be capable of being calculated with reasonable certainty, and not be overly speculative 

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9
Q

Unavoidable limitation (duty to mitigate)

A

He has a duty to take reasonable steps to mitigate his losses

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10
Q

Nominal damages

A

Awarded when P’s rights have been violated, but P suffered no loss (trespass)

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11
Q

Punitive damages rule

A

Awarded when the D has displayed willful, wanton, or malicious conduct. measured by the appropriate punishment for the misconduct. Usually maxed out at 10 times the amount of actual damages. 

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12
Q

Punitive damages elements

A

-Actual damages are awarded
-Culpability of D is greater than negligence and
-Punitive damages are relatively proportionate to the actual damages 

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13
Q

Legal restitution general rule

A

Awarded to prevent unjust enrichment

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14
Q

Two types of legal restitution for torts

A

-Money restitution
-Replevin and ejectment 

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15
Q

Money restitution rule

A

Quasi-contract (money restitution) applies where there is no legally binding contract, but the defendant has derived a benefit and fairness requires payment to the plaintiff.
When the plaintiff is awarded money to compensate for the monetary value of the benefit to the defendant 

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16
Q

Money restitution measure

A

The value of defendants ill gotten gain. It is measured by the value of the benefit unjustly retained.

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17
Q

Replevin rule

A

Allows recovery before trial of a specific chattel (personal property) wrongfully with held by the defendant

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18
Q

Replevin elements

A

-Plaintiff has right to possession and -wrongful withholding by defendant

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19
Q

Replevin measure of recovery

A

Usually property ordered returned, and plaintiff can get damages for the time period that they were deprived of use of the chattel or benefit to defendant during time of detention 

20
Q

Ejectment rule

A

Allows recovery of specific real property from which the plaintiff was wrongfully excluded 

21
Q

Ejectment elements

A

-Plaintiff has right of possession and -wrongful withholding by defendant. Same as replevin

22
Q

2 types of equitable restitution for torts

A

Constructive trust
Equitable lien

23
Q

Constructive trust rules

A

-Legal fiction created by court to compel d to convey title to unjustly retained specific property to plaintiff
-Constructive trust allows p to recover property itself and does not require plaintiff to account for any increase in value

24
Q

Constructive trust elements

A

-wrongful act by D
-D has legal title to convey
-inadequate legal remedy
-Property can be traced

25
Q

Wrongful act by D

A

Embezzlement, fraud, conversion

26
Q

D has legal title to convey

A

-Not just mere possession
-Can assert constructive trust onto money if property is sold

27
Q

Inadequate legal remedy

A

money damages are insufficient, too speculative, and/or D is insolvent (if embezzling, probably insolvent)

28
Q

Property can be traced (constructive trust)

A

Specific property has been acquired by wrongdoer and that property can be traced to the wrongful behavior
-must be solely traceable to new property (cannot use embezzled funds to remodel existing home)
-Property cannot be commingled with other property unless in a single bank account
-Apply lowest intermediate balance rule when funds commingled
-p gets benefit in increase of value

29
Q

Lowest intermediate balance rule

A

Presumes d invests/spends his own money first and any remaining balance is from wrongfully obtained funds after his own funds are exhausted
Once P’s traced proceeds are withdrawn they are gone

30
Q

Equitable lien rule

A

Legal fiction implied by court where the Property acts as collateral for money owed to plaintiff.
Grants p a lien or security interest in specific property held by d

31
Q

Equitable lien elements

A

Same as constructive trust except commingling is okay

-wrongful act by D
-D has legal title to convey
-inadequate legal remedy
-Property can be traced but commingling is okay

32
Q

Differences between equitable lien and constructive trust

A

For equitable lien:
-there merely has to be connection between P’s money and object purchased with it, doesn’t need to be purchased entirely with P’s funds
-If value of property goes down, P can assert deficiency judgment for the difference BUT enhanced value of property not recoverable

33
Q

When value of property has increased

A

Use constructive trust

34
Q

When value of property has decreased

A

Use equitable lien

35
Q

Temporary restraining order

A

-Emergency measure to maintain status quo until a hearing on prelim injunction
-May be issued ex parte (without notice) under special circumstances
-Limited to a short time period (10 days)
Focuses on harm until hearing on prelim injunction

36
Q

When can TRO be issued Ex parte?

A

If moving party makes a strong showing why notice should not be required.

-When identity of adverse party is unknown
-adverse party cannot be located in time, -notice would render further action fruitless (D would sell or dispose of property before litigation)

37
Q

Preliminary injunction

A

-Long term measure to maintain status quo until completion of a trial
-Issues after notice and hearing
-Remains in force pending trial at which time it is either dissolved or made permanent
Focuses on harm between hearing on prelim injunction and completion of trial

38
Q

Injunctive relief factors (for both TRO and prelim injunctions)

A

1)Irreparable harm to P unless injunction issues (inadequate legal remedy)
2)Balance of hardships weighs in P’s favor / public interest
3)Likelihood of success on the merits

39
Q
  1. Irreparable harm to P / inadequate legal remedy
A

-Irreparable harm to P while waiting for trial unless injunction issues
-If money damages will not fully compensate P (i.e. loss of reputation, deprivation of constitutional rights, rare/unique property)
If someone could be compensated by legal damages they wouldn’t suffer irreparable harm

Inadequate legal remedy reasoning
o Money damages are inadequate
o Money damages are uncertain/speculative
o Insolvent Defendant
o Property is unique
▪ Replevin/ejectment is unavailable
o Irreparable injury
▪ The type of loss makes money damages inadequate compensation for the type of loss (health/safety)

40
Q
  1. Balance of hardships / public interest
A
  1. D will face minimal hardship if sale will only be delayed by the injunction
41
Q
  1. Likelihood of success on merits (only for TRO/prelim)
A

Breach of K
-Applicable law
-Formation definite and certain terms
-Anticipatory repudiation- sally unequivocally stated she would not perform because she was selling car to collector at higher price (did something to explicitly show that she would not be entering into the bargain)

42
Q

Defenses

A

Laches
Unclean hands

43
Q

Laches

A
  1. Unreasonable delay by Plaintiff in pursuing an equitable remedy
  2. Plaintiff was aware or should have been aware of the availability of the remedy
  3. Delay caused prejudice to the defendant
44
Q

Unclean hands

A

Equitable relief will be denied to a plaintiff who has engaged in serious misconduct closely related to the claim
a. Serious misconduct: Unethical or immoral conduct.
b. Closely related to the claim:

ii. Look for facts showing P behaved badly in the same transaction.

45
Q

Permanent injunction

A

Issued at the conclusion of trial if plaintiff satisfies requirements for injunctive relief

• Elements:
o (1) The legal remedy must be INADEQUATE;
o (2) It must be FEASIBLE to enforce;
o (3) The Court must BALANCE the HARDSHIPS; AND
o (4) There must not be any DEFENSES

Remedies (2 decks)

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