Pg 18

Question 1

What are examples of equitable remedies?

Answer 1

Flexible course of orders like injunctions and specific performance

Question 2

What is the history behind equitable remedies?

Answer 2

Law and equity initially began as independent legal systems. The courts of law decided legal issues and gave money damages, while the courts of equity awarded coercive relief that required the defendant to do or refrain from doing specific acts. Today these courts have merged, but some distinctions remain.

Question 3

What is the equitable cleanup doctrine?

Answer 3

Once equity jurisdiction attaches, the court has the power to resolve all controversies, including legal claims that are tried to a jury, even if the equitable claims have been dismissed and only the legal ones remain. Equitable courts can decline to consider leftover legal claims, but they do not have to

Question 4

What is the only situation when restitution is even relevant and should be discussed on an essay?

Answer 4

If the plaintiff has conferred some benefit on the defendant. If that has not happened, do not discuss restitution

Question 5

Is it possible to recover both damages and get an injunction?

Answer 5

No, you can sue for both, but you can only recover for one or the other. The only exception is if there is a continuing wrong, then you can recover for both

Question 6

Is it possible for the plaintiff to sue for damages for a trespass that has already happened and an injunction to stop a future trespass from occurring?

Answer 6

Yes

Question 7

What is the threshold requirement to discuss equitable remedies?

Answer 7

There can be no adequate remedy at law. If there is an adequate remedy at law that would properly compensate the plaintiff for the wrong, then equity should not be used.

Question 8

Why is it that equitable decrees take more judicial resources than legal remedies?

Answer 8

Because the court has to retain jurisdiction while the defendant complies with the order when it is an equitable decree

Question 9

What are the major situations that you would use damages, restitution, and equitable remedies?

Answer 9

– Damages: these deal with past losses
– Restitution: when the plaintiff has confirmed a benefit on the defendant
– Equity: prevention of future harms

Question 10

What are the major equitable remedies?

Answer 10

• injunction
  – specific performance [technically this is just a form of injunctive relief, but it is thought of as a separate remedy from injunction]

Question 11

What do you always have to establish as a threshold requirement to begin discussing an equitable remedy?

Answer 11

That a legal remedy would be inadequate

Question 12

What are different ways to establish that a legal remedy would be inadequate as a threshold requirement to discuss an equitable remedy?

Answer 12

– irreparable harm or injury
– damages are too speculative to be determined
– defendant’s actions will lead to multiple suits
– uniqueness of the subject matter
– defendant is insolvent

Question 13

What is involved in the way to establish that a legal remedy is inadequate as a threshold requirement to get an equitable remedy that calls for “irreparable harm or injury“?

Answer 13

This happens when damages haven’t yet been suffered, but they certainly will be, and when they are, the resulting harm will be so great the damages cannot adequately compensate for it. If there has been irreparable harm, then the legal remedy is not adequate

Question 14

If Coca-Cola bought the rights to the first Super Bowl commercial, but Pepsi convinced the network to give the slot to Pepsi, even though Coke hasn’t suffered any damages yet, they will when the ad doesn’t play, so what about this would be considered an irreparable harm or injury that would establish that a legal remedy would be inadequate and thus that an equitable remedy would be necessary?

Answer 14

It’s hard to put a dollar amount on the business that will be lost. Coca-Cola can claim that if the commercial doesn’t run they will suffer irreparable injury which definitely will occur, and they cannot be compensated via damages, so their legal remedy is inadequate

Question 15

What is involved in the way to establish that legal remedies are inadequate that is a threshold requirement for an equitable remedy that calls for “damages are too speculative to be determined“?

Answer 15

This happens when a legal remedy would be inadequate because it was too speculative. Ie: the plaintiff is opening a new business and the defendant interferes with the plaintiff’s contracts with suppliers and causes a delay in the opening. The plaintiff will lose revenue, but it is a new business with no basis to know how much he will lose, so the court can’t put a dollar figure on the loss

Question 16

What is involved in the way to establish a legal remedy being inadequate as a threshold to get an equitable remedy that calls for “defendant’s actions will lead to multiple suits“?

Answer 16

The defendant continually trespasses on the plaintiff’s land, the plaintiff tells him to stop, nothing changes, each time is a trespass that the court can determine damages for, but since it is ongoing, it requires a plaintiff to go to court every single time to get damages, and that produces an inadequate remedy

Question 17

What is involved in the way to establish that a legal remedy is inadequate that forms the threshold basis to get an equitable remedy that calls for “uniqueness of the subject matter“?

Answer 17

Unique items make legal remedies inadequate. Real property is unique because each parcel of land is special and so cannot be compensated for, and if it involves personal property, damages cannot be given if the plaintiff cannot go to the open market and get a replacement. This happens if the property is special, unique, and one of a kind so no money can buy an identical item, since there isn’t one. I.e.: a car driven by a star in a movie

Question 18

Why is real property always considered to be unique?

Answer 18

Because each parcel of land is special, so dollars cannot compensate for an interference with real property.

Question 19

What are factors to decide if the subject matter is so unique that an equitable remedy would be required?

Answer 19

• ease of purchase of replacement goods
  – inherent nature of the service
  – modified nature of the product

Question 20

What are things that would likely be considered unique items and so a legal remedy for them would be inadequate?

Answer 20

• heirlooms
  – family treasures
  – works of art that have strong sentimental attachment

Question 21

How does the UCC differ on the uniqueness of subject matter such that a legal remedy would be inadequate and an equitable remedy would be required?

Answer 21

It takes a more liberal attitude for specific performance for goods and emphasizes commercial feasibility of a replacement. The claimant has the burden to show the inability to get a reasonable substitute without unnecessary burden, expense, or delay. Look at whether the replacement is of the same quality and will be a functional equivalent to the goods in the contract

Question 22

What is the way to establish that a legal remedy is inadequate and thus that an equitable remedy is necessary that calls for “the defendant being insolvent“?

Answer 22

The damages award will be inadequate because the defendant won’t be able to pay

Question 23

What is an injunction and what is it for?

Answer 23

This is equitable relief that orders a wrongdoer to stop doing something or to do a specific act. This is meant to prevent future harm and to operate prospectively

Question 24

What do you need to get an injunction?

Answer 24

Prove that the defendant is likely to repeat the wrongful behaviour in the future.

Question 25

What does it mean that injunctions are discretionary?

Answer 25

They are not issued as a matter of right

Question 26

What are the two different forms of injunction?

Answer 26

– mandatory injunction: DO something

– prohibitory injunction: STOP doing something

Question 27

What is a mandatory injunction?

Answer 27

An order that compels the defendant to affirmatively perform an act or activity. He must do something. The courts then have to monitor if the defendant is doing what he was ordered to do. That is why the courts do not prefer this type, and the only issue it when there’s no possible way to frame it as prohibitory

Question 28

What is a prohibitory injunction?

Answer 28

An order that compels the defendant to stop doing something or not to do something. Courts prefer these because they are easier to monitor. It is easy to see if the defendant stopped doing something.

Question 29

What are the five different types of injunctions?

Answer 29

– preliminary injunction
– permanent injunction 
– prophylactic injunction
– restorative injunction
- structural induction

Question 30

What is a preliminary injunction?

Answer 30

This maintains the status quo until the plaintiff’s right to a permanent injunction can be determined

Question 31

What is a permanent injunction?

Answer 31

This gives final and complete relief