Pg 1

Question 1

What is a remedy?

Answer 1

The form of redress that a court provides through a right of action

Question 2

When is diminution in value given?

Answer 2

If the cost to repair real property or personal property exceeds the value of the property, then the cost to restore is not given, just the diminution in value

Question 3

What is excessiveness?

Answer 3

This is calculated based on whether there is a reasonable expectation for the award, not how big the award is. It must be made certain by proof based on actual facts. This reflects the actual profits the plaintiff would have earned from the sales he would have made if the defendant had not interfered.

Question 4

What are goodwill damages?

Answer 4

The reputation the business has built over time is reflected by the return of customers to buy goods and the profits that accompany those sales. These damages relate to prospective profits and the loss of business reputation. It must be shown: the profits were causally related to the breach and there must be a reasonable basis for the court to calculate damages.

Question 5

What are lost profits?

Answer 5

The difference between what the plaintiff earned and what the plaintiff would have earned if there wasn’t a breach. These are proven through expert opinion.

Question 6

How is public policy determined?

Answer 6

From the constitution, statutes, inherent power of the court to identify and declare it

Question 7

What is quantum meruit?

Answer 7

This implies a contract when none existed and gives restitution for the value of services given under the implied contract. The plaintiff must prove that the defendant requested the plaintiff’s services and the plaintiff reasonably expected to be paid.

Question 8

What is a right of action?

Answer 8

The mechanism by which a right holder gets judicial relief because of a violation of that right. Statutes create express rights of action.

Question 9

What is a right?

Answer 9

This imposes a duty on another to act or refrain from acting for the benefit of the right holder.

Question 10

What are stigma damages?

Answer 10

The market value of the plaintiff’s property remains depressed because of lingering concerns about the effects of environmental contamination on the property even after it has been cleaned.

Question 11

What is unjust enrichment?

Answer 11

This allows an award of restitution for the value of benefits that are unjustly received, not for the value of services rendered. The reasonable cost of the services provided is evidence of the value of the benefit conferred

Question 12

What is the basic rule of damages?

Answer 12

To put the plaintiff in the position he would have occupied if the wrong had not happened.

Question 13

How do you always deal with a remedies essay?

Answer 13

• theory of liability: establish this first
  – applicable law: if this applies, such as in contracts
  – entitlement to a certain type of damages
  – measurement of the remedy

Question 14

If an essay is just remedies, how do you establish a liability theory?

Answer 14

Most facts will say, “assume plaintiff has an established cause of action.“ If that is the case, then you are fine. But if the facts do not say that, then you must first establish what the liability theory is before you can talk about damages or remedies. I.e.: if a thief stole an old car, took it to a repair shop, skipped town, the police returned the updated card to the owner, and the repair shop was not paid, there is no liability theory with the owner because there was no contract between the owner and the shop.

Question 15

What kind of things can be liability theories in remedies?

Answer 15

Almost anything, but specifically you should point out whatever the liability is but just mentioning it and that could be something like negligence, battery, breach of contract, etc.

Question 16

What is important to remember about what remedies have to involve?

Answer 16

The liability theory can never be criminal because you don’t get remedies for that, so it will always have to be a tort. So instead of larceny, find the tort equivalent which could be conversion.

Question 17

What is good essay wording for the applicable law in remedies if the law is contracts?

Answer 17

“The applicable law used to resolve any disputes involving a contract will be the modern CL unless the subject matter of the contract is the sale of goods. In that case, the choice of law is the UCC Article 2. Choose an ending:
– here, since this contract involves the purchase of……………., the UCC would apply to resolve any contractual issues between the parties
– here, since this contract involves a service, the modern CL would apply to resolve any contractual issues between the parties.”

Question 18

What are the major liability theories that come up in remedies?

Answer 18

- battery
– breach of contract
- conversion
– negligence
– trespass

Question 19

What is the definition of breach of contract and what are the elements that are needed to prove it?

Answer 19

Failure to perform a contractual promise. Elements:
– valid offer: offer, counter offer, acceptance
- breach
– damages

Question 20

Is it a defense to conversion if a second person accepts converted property and doesn’t know that it is converted?

Answer 20

No, because conversion doesn’t require that the defendant intend or realize the significance of his act, he just has to intend to do the acts that result in serious and substantial interference. Being an innocent donee of something that is traceable to embezzled funds makes the donee subject to all legal and equitable remedies available for conversion. I.e.: defendant embezzles money then donates it to charity, the charity is a converter too. An innocent converter is still a converter.

Question 21

What is the major mantra for remedies?

Answer 21

DRE: Discuss Remedies Excitedly
This is the order to approach remedies:
1. Damages + 2. Restitution + 3. Equity.

Question 22

What is the order to always approach remedies essays?

Answer 22

– DAMAGES: first consider these, if they are insufficient because they are too speculative or harm cannot be measured, then look to
– RESTITUTIONARY remedies: if those will not compensate the plaintiff, then consider
– EQUITY: you cannot give equitable remedies unless all legal remedies are inadequate

Question 23

What is the goal of remedies?

Answer 23

For every legal wrong there is a remedy to rectify it. They are meant to redress the wrong by creating the situation that would have existed had the wrong had not occurred.

Question 24

What are the major focuses of remedies?

Answer 24

– declaration and enforcement of rights
– compensation for past violations of rights
- prevention of future threatened harms

Question 25

What does it mean that remedies do not exist in isolation?

Answer 25

They are bound up with rights. Remedies are tied to substantive rights issues. They follow the law and the law provides appropriate remedies to protect the right.

Question 26

What are common law remedies?

Answer 26

Remedies that are developed through judicial decision instead of legislative or administrative action. Judges declare what the law is, but the source of the law includes both prior decisions by courts and legislative declarations.

Question 27

What are the common limitations on damages?

Answer 27

They cannot be too remote, speculative, or uncertain

Question 28

What are statutory remedies?

Answer 28

CL is often replaced or augmented by statutes. Before a plaintiff can get a reward, he must first establish a liability theory that gives rise to a remedy. Sometimes the liability theory is given in the fact pattern and sometimes you have to tease it out.

Question 29

How can the interrogatory direct you in a remedies essay?

Answer 29

It may say “is plaintiff entitled to an injunction?“ If it says something like that, then do not discuss damages or restitution. Let the interrogatory guide the discussion. But if it asks what the rights and remedies of the plaintiff are, go through DRE.

Question 30

What is the deal with jury trials when it comes to remedies?

Answer 30

The type of remedy controls (legal vs. equitable):
– LEGAL: federally, the seventh amendment says that causes of actions that seek legal remedies must be given a trial by a jury.
– EQUITABLE: but if the cause of action seeks an equitable remedy, it is tried without a jury
– MIXED CLAIMS: try the legal issues first with a jury and then the remaining equitable ones with the judge. If the primary character of the case is equitable, even a mixed claim may not entitle a jury trial
– STATES: the seventh amendment does not apply to the states, so the state court system works differently.

Question 31

What is the equitable cleanup doctrine?

Answer 31

A judge as the trier of fact in equity also decides any incidental damage issues

Question 32

What are the three sources of remedial rights?

Answer 32

• Statutes
• Constitutions (Federal and State)
• CL
  Any of these can establish the basis for one or more remedies in certain cases.

Question 33

What is the rule against double recoveries?

Answer 33

Defendants can be liable for more than one cause of action and the plaintiffs may be entitled to recover from multiple defendants. But the plaintiffs cannot get double recovery