Pg 2 Flashcards
What are the four basic classes of remedies?
- coercive remedies: injunction and specific performance
– damages
– restitution
– declaratory relief
What are specific remedies?
Awards that the plaintiff would have gotten if the legal wrong had not happened
What are damages?
Monetary compensation for a loss caused by the legal wrong of another.
What are the different kinds of damages?
- compensatory
- punitive
– general
– special
– economic
– non-economic
What do punitive damages do?
Punish the defendant for wrongdoing
What are nominal damages?
These give public vindication as recognition that the plaintiff sustained a legal wrong. These declare the rights of the parties
What is the extra thing that has to happen with regard to nominal damages?
They have to be requested. Although they are mandatory if the plaintiff’s constitutional rights were violated but he cannot prove any actual injury
What are presumed damages?
These occur when actual damages are hard to prove and they allow recovery without evidence of actual loss. I.e.: defamation: presumes damage to reputation, so actionable per se
What are injunctions?
When the defendant is ordered to do something or to refrain from doing something.
What is the goal of an injunction?
To induce compliance through legal sanctions for not complying. It undoes the continuing effects of the wrong.
If a defendant does not comply with an injunction, what happens?
He can be sanctioned for contempt
Is it true that judges are immune from suits for damages?
Yes, but they can be sued for injunction or declaratory relief
What is restitution?
This forces the defendant to discard a benefit if keeping it would be unjust enrichment.
What is declaratory relief?
A judicial statement of the parties’ rightful legal positions on the matter. This is just educational and does not compel any action. The person then has to commence other legal action to enforce the rights or duties that the court recognized in this action.
Before parties can get declaratory relief, what do they have to show?
A justiciable controversy
What are express remedies?
Statutes sometimes expressly give the remedy by stating that a violation can be punished by damages, injunction, or restitutionary relief.
What are implied remedies?
When the remedy is not expressly provided for in the statute. This is the usual approach
What is the point of damages?
To compensate the plaintiff for loss suffered in violation of his rights
What are the elements of damages?
– foreseeable
– certain
– unavoidable
What does it mean that damages must be foreseeable?
They must be a reasonable foreseeable consequence of the wrongful act
What does it mean that damages must be certain?
They must be measured with sufficient certainty. If they are too speculative, they cannot be given. This requirement is stronger in contract law than in tort because in tort it is sometimes hard to do this
What does it mean that damages must be unavoidable?
The plaintiff must take reasonable steps to mitigate damages. If not, they are not unavoidable
What is the difference between economic damages and non-economic damages?
– economic: objectively verifiable monetary losses. Ie: medical expenses, lost earnings or profits, cost of repair, diminution in value, etc.
– non-economic damages: subjective and non-verifiable losses. Ie: pain and suffering, emotional distress, injury to reputation, loss of consortium
What are liquidated damages?
A clause that is inserted by mutual agreement into a contract where the parties attempt to determine what the damages should be if there is a breach
If a liquidated damages clause is valid, what happens?
It is the sole determiner of the recoverable damages for breach
What is the two prong validity test for liquidated damages?
– at formation, damages on breach must be DIFFICULT to forecast or uncertain.
– at formation the parties must make a reasonable attempt to ANTICIPATE what the damages will be
If a liquidated damages clause is invalid, what happens?
It is just ignored and not enforced. The contract is treated like there wasn’t a liquidated damages clause and the plaintiff can only get the damages he can prove
Who has the burden of proof with regard to liquidated damages?
This is on the party that is challenging the provision. He must demonstrate that it is unenforceable as a penalty
What are consequential damages?
In addition to the standard measure, the plaintiff is compensated for any other damages suffered if they were reasonably foreseeable at formation. I.e.: on a land sale contract, if the seller breached and the buyer had to find another place to live, the consequential damages would be the expenses that he didn’t anticipate
What is the test for consequential damages?
– at formation it was a FORESEEABLE consequence of the breach [in the ordinary course of events], OR
– at formation the seller could reasonably FORESEE the party incurring that expense
What type of damages are consequential damages?
These are special damages, so they have to be specifically completed by the plaintiff and proven as to their extent
What do you have to look at with regard to consequential damages?
Look at the facts to see if the expenses are reasonably foreseeable. If the seller knew or should have known something [like the housing market was tight and the buyer had to leave his home to move into his property, then it’s foreseeable he would have extra expenses to find a substitute place to live if the seller breached. But if the seller knew that the buyer was just flipping the house, he wouldn’t think that the buyer would have living expenses upon breach]
What is good wording to discuss consequential damages on an essay?
“Damages are foreseeable as a probable result of a breach when they:
– follow from the beach in the ordinary course of events, OR
– occur as a result of a special circumstance that the breaching party knew about or had reason to know about.“
Who has the burden of proof with regard to consequential damages?
The plaintiff has the burden of proof to show one of the two elements for consequential damages. If he cannot provide sufficient facts, then he doesn’t recover consequential damages
If there is a contract to have a home built and the contractor built the home defectively, and this causes the buyer not to be able to host a family reunion and he has to pay $5000 to hold the reunion elsewhere, can he recover that $5000 as consequential damages?
Only if the contractor knew that the home was being built for that purpose
What are incidental damages?
These are only recognized by the UCC and they only involve sale of goods. This includes any commercially reasonable charges that result from dealing with goods in the contract and they have to be a foreseeable consequence of the breach. It includes: inspection, receipt, transportation, care and custody or storage of goods that are rightfully rejected, etc.
Incidental damages only apply to what kind of law?
UCC
What are expectation interests?
This is the benefit of the bargain. Plaintiff gets what he would’ve gotten if the bargain hadn’t been disrupted.
What are reliance damages?
P recovers the loss caused as a result of his reliance on the defendant’s misrepresentation. Just tries to put the P in the position he would’ve been if the bargain had never been entered. Plan to get the value of any expenditures he made in preparation to perform the contract or in personal performance of the contract prior to the breach. This only includes what the plaintiff extended in reliance on the contract
What are the two remedies that are alternatives to each other, and you can only get one or the other?
Expectation interests and reliance damages. You can only get either expectation or reliance, never both.
Which one usually results in a lower amount, expectation interest or reliance damages?
Reliance is usually less than expectation, but it is sometimes chosen when the expectation award cannot be measured with sufficient certainty
What are compensatory damages?
They are meant to put the plaintiff in a position he would’ve been if the defendant hadn’t committed to legal right
