Pg 13

Question 1

What are the major remedy defenses?

Answer 1

WIDE GLUE SUI
– waiver
– in pari delicto
– duress
– equitable estoppel

– defences against the government
– laches
– unclean hands
– election

– statute of limitations
– illegality
– unconscionability

Question 2

What are remedy defenses?

Answer 2

Defences that remedy the claims that operate on the remedy, not the underlying right

Question 3

What is involved in the remedy defence of statute of limitations?

Answer 3

This just affects the right to enforce the remedy, not the right itself. The plaintiff gets a set period of time to commence a claim, and if he doesn’t, then he’s barred from relief. This is meant to stop stale claims.

Question 4

Under the statute of limitations what is the key to see if a claim was timely filed?

Answer 4

Date of accrual: this identifies the point that the action can first be maintained

Question 5

What are exceptions to the date of accrual for statute of limitations?

Answer 5

– discovery doctrine: a COA accrues when the plaintiff knows or should have known that the harm was sustained.
– continuing injury: if it is an ongoing wrongful conduct that doesn’t happen in a single event, each operative act is a separate cause of action that has its own statute of limitations

Question 6

If there is a discriminatory hiring exam that creates a priority list, what is the accrual date for statute of limitations?

Answer 6

Because this is a continuing injury, every time the list is used to hire someone, a new violation happens with a new cause of action which starts the SOL again

Question 7

What is involved in tolling for a statute of limitations question?

Answer 7

This is an event that suspends the running of the statute of limitations for an equitable or statutory reason. Ie: legal disabilities like being a minor, insane, or in jail, absence from the state, estoppel because the other party mislead the plaintiff by promising something and the plaintiff relied on that so he didn’t bring an action earlier, concealment, etc.

Question 8

What are the elements for tolling for statute of limitations?

Answer 8

• wrongful concealment by the defendant
• failure by the plaintiff to discover the true facts within the statute of limitations
  – due diligence by the plaintiff until discovery

Question 9

What is involved in the remedy defence of laches?

Answer 9

This happens when there has been an unreasonable delay by the plaintiff that causes material prejudice to the defendant.

Question 10

What are the three major elements for laches?

Answer 10

– unreasonable delay
– material prejudice resulted
– knowledge

Question 11

What is considered to be unreasonable delay for laches?

Answer 11

When the plaintiff with actual or constructive knowledge of the facts fails to act to secure his legal rights. If there’s no good explanation for the delay, it is unreasonable.

Question 12

What are considered to be examples of reasonable delays that would not allow laches to bar the suit?

Answer 12

– waiting for an imminent change in the law
– negotiating resolution of disputes
– other litigation
– poverty, illness, wartime conditions

Question 13

What does it mean as an element of laches that material prejudice has to result?

Answer 13

The injured defendant’s ability to defend against the claim has to be prejudiced. This could come from a loss of records, destruction of evidence, failing memories, unavailable witnesses, etc. This could also cause economic prejudice or unfair exposure to risk

Question 14

What is involved in the element of laches that calls for the plaintiff to have knowledge?

Answer 14

The plaintiff had to have knowledge of the claim that he delayed bringing, although this could be constructive

Question 15

What is the remedy defence of unclean hands?

Answer 15

Courts will not allow P to aid the commission of a wrong. This protects the integrity of the courts. I.e.: a plaintiff is barred from suing his attorney for damages that came from his own false testimony in a prior action

Question 16

What is involved in the remedy defence of In Pari Delicto?

Answer 16

This means in cases of equal fault, the position of the defendant is stronger. The plaintiff’s culpability must be equal to or greater than the defendant’s.

Question 17

What is involved in the remedy defence of duress?

Answer 17

You can avoid an obligation if it was compelled by the wrongful threat of another and it precluded the plaintiff’s free will

Question 18

What are the elements of duress?

Answer 18

• wrongful or unlawful act or threat
  – that deprived P of his unfettered will
  – the defendant’s threats left the plaintiff no reasonable alternative

Question 19

What is involved in the remedy defence of unconscionability?

Answer 19

Bargains that violate basic norms of morality should not be enforced. This happens when the bargain is morally unfair or in equitable

Question 20

What are the two types of unconscionability?

Answer 20

– procedural unconscionability

– substantive unconscionability

Question 21

What is procedural unconscionability?

Answer 21

The focus is on the way the bargain came about by duress or deceit. These types of bargains unfairly creates a surprise and include terms that the P didn’t contemplate or give assent to. Ie: contract terms that are offered on a take it or leave it basis, inequality in bargaining positions, etc.

Question 22

What is substantive unconscionability?

Answer 22

This focusses on the bargain itself and whether it is unfair, one-sided, or oppressive. A provision involves terms that are so one sided that it shocks the conscience or imposes harsh or oppressive terms

Question 23

What is equitable estoppel?

Answer 23

This prevents someone from profiting by exploiting an action or inaction that he induced another person to take

Question 24

What are the elements of equitable estoppel?

Answer 24

– misleading conduct by the party to be estopped
– that induces the other party to act or refrain from acting in a way that is prejudicial to his legal interests
– the party claiming estoppel relied on misleading conduct and didn’t know the true facts

Question 25

Does equitable estoppel apply if the party knew the true facts?

Answer 25

No

Question 26

What type of conduct must be involved for equitable estoppel to apply?

Answer 26

It must be affirmative conduct, not silence

Question 27

What is the remedy defense of waiver?

Answer 27

Intentional relinquishment of a known right. The person has to be aware of the right and intend to give it up and it has to be free of coercion, duress, and overreaching. Waiver can be express or implied and it is irreversible once it is executed

Question 28

What is the remedy defense of election?

Answer 28

This holds a party to his choice and he must adhere to it and the consequences

Question 29

What is involved in the remedy defense of illegality?

Answer 29

Parties to an illegal transaction cannot get legal aid. If you bribe someone, you cannot recover the money or the property as part of the bribe. The idea is that the courts cannot be involved in wrongdoing

Question 30

Was is involved in the remedy defense of defenses against the government?

Answer 30

The government has rights that others do not have, such as the right to bring claims that are free of defenses. The government is not subject to laches, equitable estopple, unclean hands, or equitable tolling