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