midterm review Flashcards
equitable and legal remedies
can have both but can’t double dip- can’t get both if they are doing the same thing
legal remedies
money damages; nominal, compensatory, punitive
considerations: pure economic loss, credit for benefit, collateral source, pre and post judgement interest, reduction to present value, total offset method
non-monetary legal remedies: asset freeze order, replevin, attachment, ejectment and legal unjust enrichment
compensatory
cause of action
cause in fact (but for or substantial factors)
foreseeable (proximate cause) damages
certainty in amount and fact of damages
Can be economic or non-economic and direct or indirect
punitive
only awarded when there is malice, oppression or fraud. usually intentional.
reprehensibility, disparity (9:1 disparity max usually), difference in punitive and civil penalties
equitable remedies
only used if monetary damages will not work (inadequate remedy at law)
injunctions, declaratory judgements, constructive trust, equitable liens, subrogation
short term injunctions
TRO, Preliminary, stay pending appeal
*understand the timing to evaluate these
Traditional test (need all 4)
1. likelihood of success on the merits
2. likelihood of irreparable harm
3. balancing of hardship
4. public interest
5. maintains status quo- ultimate goal of short-term injunctions
sliding scale uses same factors but is more flexible
sliding scale
low likelihood of irreparable harm ***
bonds for short-term injunctions
determining amount
modification
recovery
exceptions
*always subject to proof
*whatever the final # is the ceiling- not guaranteed to get the entire thing but its the most you can get
permanent injunction
cause of action has already been proven
irreparable injury and inadequate remedy at law
balance of hardship and public interest- supervision difficulties and freedom of speech
no bonds because merits are already decided
tailoring injunctions
injunctions are discretionary
judges try to tailor the injunction to create fairness and to stop the irreparable harm
tailoring applies to all types of injunctions
equitable affirmative defenses
laches and unclean hands can apply to any equitable remedy
laches- unreasonable time and unreasonable prejudice
unclean hands- P is also a wrongdoer. basically a hypocrisy defense
declaratory judgement case or controversy
a current dispute based on existing facts with sufficient immediacy
unjust enrichment
legal and equitable
1. P conferred a benefit
2. D knew
3. D acceptance of the benefit is unfair
legal unjust enrichment
if the D was accidentally tortious, then all D must may is the benefit received
if the D was consciously tortious, then D must pay the higher measurement between the benefit or D’s gain plus disgorgement of profits
fruits of D labor
if D must disgorge profits, it does not mean all profits- D gets some credit for the fruits of their labor- value of the D’s labor in obtaining the profits
choosing unjust enrichment
tortfeasor has a gain because of the tortious conduct and there is a loss to the P. the facts could give ruse to both a tort and unjust enrichment.
P will need to pick either the tort or UE (waive the tort and sue in assumpsit)
Defenses to legal unjust enrichment
volunteer or officious intermeddler
change in position- is there something tangible that you can point to and recover, or a previous debt owed
equitable unjust enrichment
constructive trust, equitable lien, subrogation
can be combined with money damages
constructive trust
grounds for UE + res + title
Tracing
Co-mingling
lowest intermediate balance
increase/ decrease in value
P has title the entire time
equitable lien
gets P a security interest
P only gets the value of what was given- no increase or decrease in value
no legal title requirement
usually used when stole something of yours to get part of something else because can’t get the entire thing
subrogation
a person can be substituted in place of another
usually someone knowingly or not, paid off someone else’s debt
legal remedies for specific torts
personal injury- nominal, compensatory, punitive (almost exclusively monetary damages)
personal & real property (either equitable or legal remedies depending on facts)
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trespass to chattel or conversion
temporary or permanent
recovery remedies: self help (legal remedy), replacing (legal remedy) or injunction (equitable)
conversion
not recovered- permanent harm
FMV of the item at the time of the conversion
+ reasonable LOU until a reasonable time of replacement
*
trespass to land
coming onto or taking something off the land
punitive damages are not available for unjust enrichment
temporary nuisance
only option is an injunction
