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Remedies > Midterm > Flashcards

Midterm Flashcards

1
Q

4 limitations to damages

A

1) Causation: “but for” 2) foreseeability: proximate cause (type, not extent of harm, was reasonably forseeable); 3) certainty: proven and calculated with reasonable certainty. 4) unavoidability/duty to mitigate: reasonable and timely steps to mitigate losses

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2
Q

pure economic loss rule

A

no pure economic loss without physical harm to P’s person or property unless intentional tort or professional malpractice

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3
Q

punitive damages requirements

A

1) compensatory or nominal damages required first; 2) requires willful conduct (malice, oppression, fraud); 3) proportionality factors 9:1

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4
Q

Types of Personal Injury Damages (3)

A

1) pain (physical) and suffering (mental); 2) medical expenses; 3) lost income (wages, diminished earning capacity)

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5
Q

Future losses recoverable?

A

Yes, preponderance of evidence with reasonable certainty BUT must be discounted to present value and account for inflation

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6
Q

Survival Action

A

P represents D’s estate; can recover pain and suffering; medical expenses, lost wages

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7
Q

Wrongful Death

A

grant recovery for pecuniary injury resulting to the spouse and next of kin for a wrongful death loss of support and consortium (NO pain and suffering)

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8
Q

Trespass to land Rule

A

intentional physical invasion of another’s land. intent: desire and purpose to invade (mistake is not defense); physical invasion: entry on another’s land without permission, remaining on land without the right to be there; placing object on land

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9
Q

trespass to chattels

A

1) intentional (intend to do act, mistake is not defense, transferred intent ok); 2) interference with P’s use or possession of personal property (chattel is harmed, p can’s use/possess)

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10
Q

Conversion

A

1) intentional (no transferred) 2) substantial interference with P’s ownership of chattel (extent of harm warrants paying full value)

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11
Q

Negligence

A

1) Duty: act like a reasonable person, foreseeable to whom duty is owed 2) Breach: failure to meet standard of care 3) causation (actual: but for; proximate: reasonable foreseeability, egg shell P) 4) damages: actual injury required

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12
Q

public nuisance

A

substantial, unreasonable interference with health, morals, welfare safety or property rights of the community

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13
Q

private nuisance

A

substantial, unreasonable interference with another private individual’s use or enjoyment of his land or land in which he has an interest.

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14
Q

Substantial interference (public & private nuisance)

A

interference that is (1) offensive, (2) inconvenient, or (3) annoying to the average person in the community.

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15
Q

Unreasonable interference (public & private nuisance)

A

a.The harm to plaintiff outweighs the utility of defendant’s conduct; OR
b.The harm caused to plaintiff is greater than plaintiff should be required to bear without consideration.

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16
Q

factors court considers for public nuisance

A

1) location of nuisance; 2) frequency and duration; 3) degree of damage; 4) social value of the activity

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17
Q

public nuisance standing

A

private party suffered damage that is different in kind and NOT MERELY DEGREE than suffered by public

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18
Q

Nuisance defenses

A

1) legislative authority is persuasive but not absolute
2) coming into nuisance

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19
Q

Remedy for destroyed personal property

A

fair market value minus scrap/salavge, plus ensuing loss; if no FMV, actual value to owner (NOT sentimental value)

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20
Q

Remedy for damaged property

A

dimunition in value OR reasonable cost of repair + loss of use/profits -damages reasonably avoided

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21
Q

Fluctuating markets?

A

highest market value between time of injury and time of trial PLUS interest, as long as P was reasonably diligent in bringing suit

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22
Q

Loss of Use

A

P must prove P (1) needed the property and (2) was prevented from using it by D’s action
Measure = (1) cost to rent a temporary replacement or (2) rental value lost for inability to rent out P’s property, both for a reasonable period until permanent replacement can be obtained

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23
Q

Lost Profits

A

P must prove property was used to generate income
Consider all factors relevant to likelihood of success of business/transaction (ex. Business conditions, similar transactions, expert testimony, etc.)

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24
Q

Trespass Damages (compensatory)

A

no damage, but nominal damages may be available; more significant: compensatory damages available (rental value of the land for the time period land was wrongfully possessed)

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25
Q

Nuisance compensatory damages

A

Permanent injury: difference in the fair market value of land before and after the injury
Temporary injury: the cost of repair or the diminished rental value plus damages for loss of use or discomfort & annoyance

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26
Q

Restitution

A

prevents unjust enrichment where D has benefited at cost to P

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27
Q

Restitution Legal Remedies

A

1) Money: give money back
2) Replevin: give personal property back + damages for loss of use
3) Ejectment: give real property back
Damages for harms caused
Damages for lost rental value/loss of use
Damages for mesne profits
Mesne: profits received as a result of wrongful possession (like actual rents received). If seek mesne profits, a good faith D is entitled to credit for value of any improvements made to the property.

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28
Q

Equitable Restitution (2)

A

Constructive Trust, Equitable Lien

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29
Q

Constructive Trust

A

fictional trust that gives P to title of property D unjustly obtained that’s traceable to D’s wrongful behavior

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30
Q

bona fide purchaser limitation

A

If the res is transferred to a bona fide purchaser (1) for value and (2) without the bona fide purchaser’s actual or constructive notice of P’s equitable interest in the res, P may not enforce P’s equitable interest in the res against the BFP

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31
Q

Requirements for constructive trust and equitable Lien

A

1) D holds title to res
2) res belongs to P bc it can be traced to D’s wrongful behavior
3) D’s retention of res would result in unjust enrichment

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32
Q

Equitable Lien difference from Constructive Trust

A

C: gets whole res; E: Works if P is entitled only to a portion of the res

ALWAYS talk about equitable lien when you talk about constructive trust even if it’s not a good option just for extra points

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33
Q

Last intermediate balance rule

A

But, when D dissipates commingled funds and the account balance drops to below the amount belonging/traceable to P, P’s money is considered dissipated

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34
Q

Spectrum of restitution liability

A

innocent, negligent, conscious

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35
Q

Temporary Restraining Order (TRO)

A

-stops action until hearing (14 days)
-threat to immediate future injury

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36
Q

Preliminary Injunction

A

-waits until full merits are determined by court
-threat to immediate future injuryh

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37
Q

Elements/RS for TRO and Prelim Injunction

A

-Court has DISCRETION to issue if
1) P is likely to succeed on merits (liability and defenses) (strong probability, not certainty)
2) irreparable harm/inadequate legal remedy
3) balance of equities (weigh the relevant hardships: P,D, public interest)

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38
Q

How to show irreparable harm

A

(a) identify the harm, (b) explain why its irreparable or the remedy is inadequate

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39
Q

Permanent Injunction

A

0) Ripeness (an demonstrate that there is a realistic threat that future harm is likely to occur, concrete, not just personal fear/mere possibility)
1) irreparable harm
2) feasibility of enforcement: consider admin burden on court
3) balance of equities
4) D has no defenses

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40
Q

Defenses to Equitable remedies (3)

A

Unclean hands
Laches
Acquiescence

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41
Q

Unclean Hands

A

P engaged in wrongful conduct (fraudulent, illegal, or willful—or even reckless or grossly negligent) and
that is directly related to the claim

42
Q

Laches

A

P unreasonably delayed and
D suffered material prejudice

43
Q

Acquiescence

A

Plaintiff knowingly fails to object to an infringement of Plaintiff’s rights

By Defendant who acted unknowingly and without malice

44
Q

Declaratory Judgment

A

actual justiciable controversy (ripeness)
There must exist an actual, live, concrete dispute between the parties

45
Q

What type of damages can you get for tort?

A

compensatory (TALK FIRST), nominal, punitive

46
Q

Mesne

A

profits received as a result of wrongful possession (like actual rents received). If seek mesne profits, a good faith D is entitled to credit for value of any improvements made to the property.

47
Q

Defense to unjust enrichment

A

Officious intermeddler or Good samaritan

48
Q

How to argue against defense to unjust enrichment

A

D exercised a meaningful choice to accept the benefit offered by P
OR 2) D is in an emergency situation and all 4 elements are met
Benefit conferred by P goods or services was necessary to prevent D’s serous bodily harm or pain
P intended to charge for conferring the benefit
P did not have reason to know that D would not consent to receiving the benefit and
D’s consent was impossible (D was unconccious or a minor)

49
Q

If property value has increased, Con Trust or Equit Lien and why?

A

Constructive trust, because if property value is more than unjust enrichment, P gets to keep any increase. For Equit Lien, P can get deficiency judgment when property value decreases

50
Q

battery

A

intent, harmful or offensive contact

51
Q

assault

A

intentional causing of imminent harmful or offensive contact

52
Q

IIED

A

intent, severe emotional distress, extreme and outrageous conduct

53
Q

Survival action

A

the decedent’s estate may recover the following types of damages up until the time of the decedent’s death: (1) pain & suffering, (2) medical expenses, and (3) lost wages

54
Q

Wrongful Death

A

For a wrongful death claim, the decedent’s spouse or next of kin may recover the following types of damages:
(1) medical expenses (so long as there is no double recovery for the same elements of loss under the survival action); (2) funeral & burial expenses;
(3) loss of support (future income), reduced to present value; and
(4) loss of consortium (companionship)

55
Q

Punitive damages

A

Requires willful conduct (malice, oppression, or fraud). Proportionality factors and 9:1 rule.

56
Q

When does UCC apply

A

Contracts for goods (moveable tangible property) are governed by the UCC. Everything else is governed by common law (services, land)

57
Q

Predominance test

A

If both goods & services are involved, then use the predominance test to choose which law governs over the entire contract: What is the predominant purpose of the contract as a whole?

58
Q

Valid contract requires what elements

A

offer, acceptance, consideration and no defenses

59
Q

anticipatory repudiation

A

when a contracting party makes an unequivocal expression before the time for performance is due that the party will not perform under the contract

60
Q

Offer

A

An offer is a manifestation of willingness to enter into a bargain.
Elements: (1) intent, (2) certain and definite terms, and (3) communication to the offeree

61
Q

Acceptance (contracts)

A

An acceptance is a manifestation of assent to the terms of the offer and can be by words or by conduct.
(unilateral or bilateral)

62
Q

Mirror Image rule (non UCC)

A

when acceptance’s terms vary from offer’s terms— i.e., any conflict = rejection & counteroffer

63
Q

Mirror Image Rule UCC

A

CC treats any “expression of acceptance” or “written confirmation” as acceptance. If additional terms, then battle of forms (if both parties merchants, then K with exceptions). If one is not, then just proposal

64
Q

UCC: when a buyer makes an offer to buy goods, the seller may respond to just ship goods. State rest of rules

A

If the goods are conforming → seller acceptance
If the goods are non-conforming
If seller acknowledges nonconformity = seller made “accommodation” / counteroffer to the buyer—and now the buyer is free to accept or reject
If seller does NOT acknowledge nonconformity = offer has been accepted and breached

65
Q

Consideration

A

Bargained-for exchange of legal detriment

66
Q

Promissory Estoppel

A

Even if consideration is lacking, court can still enforce a promise to prevent injustice by relying on promissory estoppel as a substitute
Elements: (1) Promisor makes a promise, (2) Promisor foreseeably induces promisee’s reliance, (3) Promisee actually relies on the promise
Remedies - limited to reliance damages

67
Q

Defenses to contract formation (7)

A

Sof, misrepresentation/fraud, unconscionability, mistake, misunderstanding, illegality, lack of capacity (legal incapacity, duress, undue influence)

68
Q

Statute of frauds

A

Under SOF, contracts for the sale of goods worth $500 or more and interest in land must be in writing and signed by the party to be charged. And performed within a year of contract forming

69
Q

Exception to Statute of frauds

A

However, SOF cannot be used as a defense to reformation when the mistake to be corrected in the written contract is the omission of an essential term due to scrivener’s error or misrepresentation/unilateral mistake

70
Q

Parol Evidence Rule

A

limits admission of parol evidence (1) made before or contemporaneous with (2) a written contract

Contradictions - not allowed
Supplements only allowed when partially integrated (final expression not intended to include all details)

71
Q

Exception to parole evidence

A

PER does not apply in the context of a claim for reformation

72
Q

Defenses that excuse performance (3)

A

Impossibility (event happened that made it impossible), impracticability (extremely and unreasonably difficult, didn’t think it would occur), frustration of purpose (event destroys purpose of contract)

73
Q

primary contract damages

A

(1) liquidated damages, (2) expectation damages, (3) reliance damages, (4) nominal damages

74
Q

Secondary contract damages

A

(1) consequential damages, (2) incidental, (3) punitive

75
Q

liquidated damages

A

Damages that contracting parties agree to in advance in case of a breach of contract
Modern view: courts will enforce as long as the damages are reasonable in light of the anticipated or actual loss

76
Q

Nominal Contract Damages

A

Damages awarded in name only to vindicate plaintiff’s rights when plaintiff prevails on a breach-of-contract claim, but plaintiff has suffered no compensable loss

77
Q

Consequential damages are available for what primary damages in contracts

A

expectation damages, NOT reliance damages

78
Q

Buyer’s Cover (contracts)

A

-no obligation
-must be (1) in good faith and (2) without unreasonable delay. This applies to both (a) substitute good and (b) cover price paid.

79
Q

Seller’s resale contracts (like cover)

A

must be (1) in good faith and (2) in a commercially reasonable manner
-no obligation

80
Q

Contracts Restitution

A

A plaintiff may seek restitution when
the plaintiff has performed certain services for the defendant,
the services were rendered at the defendant’s request, and
The services conferred a benefit on the defendant.

The plaintiff may recover either the fair market value of the plaintiff’s services or the amount gained or saved by the defendant.

81
Q

Recission

A

equitable remedy that avoids or unmakes a contract so as to put the parties back in the position they were in before the contract was made.

82
Q

Recission elements

A

Rescission requires no meeting of the minds, proper grounds for requesting rescission (any contract formation defense), and no defenses granting it.

83
Q

proper grounds for recission

A

mutual mistake, unilateral mistake and misrepresentation.

Misrepresentation occurs when one contracting party makes a false statement or omission of material fact, and the other party justifiably and actually relies on the misrepresentation and suffers actual damages. Misrepresentation can be innocent, negligent, or fraudulent (i.e., knowingly and with intent to induce reliance).
If fraudulent, P can also recover punitive damages

84
Q

Defenses and NOT defenses for recission

A

Defenses: unclean hands, laches, acquiescence, adversely affect BFP’s rights

Not defense: PER, SoF, negligence (not reading carefully)

85
Q

Reformation

A

Reformation is an equitable remedy that allows the judicial rewriting of a written agreement to reflect the parties’ true intent and conform to the parties’ actual agreement.

86
Q

Reformation elements

A

Reformation requires the existence of an agreement, a proper ground for requesting reformation, and there must not be any defenses to granting it

87
Q

Proper ground for reformation

A

One way to establish proper ground is when there is a meeting of the minds but a mistake occurs in the execution of the written contract, such as a scrivener’s error or typo that omits or alters an agreed-to term

Another ground for reformation is unilateral mistake, which can be caused by the other party’s misrepresentation.

88
Q

Specific Performance in Contracts (elements)

A

1) an inadequate legal remedy (money damages unavailable, loss of chance/advantage) 2) valid contract with definite and certain terms 3) all contract conditions are satisfied and both parties are ready and able to perform 4) feasibility of enforcement and no defenses

89
Q

Reasons for “feasibility of enforcement”

A

negative injunctions are easier to enforce, while mandatory injunctions are harder to enforce and are therefore disfavored. This is especially true if taste, judgment, or skill is required to determine the defendant’s compliance with the order. Also, courts typically will not order a defendant’s specific performance of personal service contracts

90
Q

illusory promises

A

vague consideration “i promise to buy as many as ai want”. REquirement and Output contracts are NOT illusory (seller will meet all of buyer’s requirements or buyer buys all of seller’s output)

91
Q

Issues in consideration

A

illusory promises (i promise to buy as many as a i want)

inadequate consideration (gifts, nominal, past benefits, pre existing duty)

92
Q

Statute of Frauds

A

Requires 5 types of K in writing: Marriage, Real property, debt, One year, Goods (MR.DOG)

93
Q

Contracts defenses (formation and enforcement)

A

Formation (SoF, misrepresentation/fraud, unconscionability, mistake, PER, lack of capacity like duress or undue influence)

Enforcement (inpossibility, impracticability, frustration of purpose)

94
Q

Misrepresentation/fraud

A

-can be innocent, negligent, or fraudulent
1) false statement or omission
2) justified and actual reliance
3) damages (punitive if fraudulent)

95
Q

Unconscionability

A

Contract is so unfavorable to one party that no reasonable
person would have agreed to it (terms or process (s/P)

96
Q

Mistake

A

About a basic assumption
existing at time of K formation
2. Material effect on deal
3. Adversely affected party did not
assume the risk of the mistake

Unilateral: other party should have known about mistake

97
Q

Modification common law v ucc

A

Common: needs mutual assent and consideration

UCC: mutual and good faith

97
Q

impossibility

A

performance literally impossible

98
Q

impracticability

A

event happened, performance is extremely and unreasonably difficult

98
Q

Frustration of purpose

A

event happened that destroys purpose to enter contract

Remedies (1 decks)

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