Rem Deck Flashcards
What are the common categories of remedies?
- Compensatory damages
- Preventive remedies
- Restitutionary
- Punitive
- Ancillary
What are the two types of preventive remedies?
- Coercive
2. Declaratory
What are compensatory damages?
Compensatory damages are designed to compensate the plaintiffs for harm they have suffered.
What is the most important compensatory remedy?
Compensatory damages
What are compensatory damages?
Money damages designed to make plaintiff as well off as he would ave been if he never had been wronged.
What are preventive remedies?
Remedies that are designed to prevent harm before it happens, so that the issue of compensatory damages never arises.
What is the most important coercive remedy?
An injunction
What is an injunction?
A personal command from a court to litigants, ordering them to do or to refrain from doing some specific thing.
When is someone held in contempt?
When they violate a direct order from the court.
What are declaratory remedies?
They authoritatively resolve disputes about the parties’ rights, but they do not end in a personal command to defendant.
ex: court will decide who owns the forest
What are restitutionary remedies?
Remedies designed to restore to plaintiff all that defendant gained at plaintiff’s expense.
What ancillary remedies?
Remedies designed to aid other remedies
What is the most important ancillary remedies?
Court costs and attorneys fees
What is receivership?
An ancillary remedy where the court finds it necessary to manage assets pending litigation.
What are the two main types of remedies?
Substitutionary and specific remedies
What are substitutionary remedies?
Plaintiff suffers harm and receives a sum of money.
Include compensatory, attorney’s fees, restitution of money value of defendant’s gain, and punitive damages.
What are specific remedies?
They aspire to prevent harm, or undo it, rather than let it happen and compensate for it.
Include injunctions, specific performance of contracts, restitution of specific property, and restitution of a specific sum of money.
Why is it called substitutionary?
Because the sum of money is substituted for plaintiff’s original entitlement, and in the less obvious sense that the fact finder;s valuation of the loss is substituted for plaintiff’s valuation.
What is the rightful position standard?
The rightful position standard says to choose the remedy that puts the plaintiff back in the position that she would have in but for the defendant’s wrong.
When measuring market-value, when does the court usually measure damages?
At the time of the loss
To what standard must damages be proven?
Reasonable certainty
When is there presumed damages?
Defamation claims
When does the economic rule not apply?
When the only harm is economic, to avoid crushing liability
What is the rightful position in a contract claim?
The position that the plaintiff would have been in but for the breach of the contract.
What remedies are paired with contract claims?
Expectancy and reliance and consequential, liquidation too
What consequential damages can someone recover?
Those that were foreseeable.
What are the requirements to be considered a lost volume seller?
- Possessed the capacity to make an additional sale
- It would have been profitable for it to make an additional sale
- It probably would have made an additional sale absent the buyer’s breach
What are the three situations in which courts may award reliance damages rather than expectancy damages in contract?
- the non-breaching party has a problem with the substantive contract
- there are compelling public policy reasons to limit damages to a lesser amount
- the non-breaching party has trouble proving expectancy damages with reasonable certainty
What is the collateral source rule?
Insurance and certain govt benefit payments that are wholly independent of the tortfeasor do not get deducted from the plaintiff’s award of tort damages.
What is the propensity rule?
The plaintiff must demonstrate there is a realistic threat from the defendant of future harm (or future injury from past harm) before a court will issue an injunction.
What are the two varieties of propensity problems?
Ripeness and mootness
What happened in ebay?
Court set new standard for determining whether an injunction should be issued.
A plaintiff must demonstrate:
- It has suffered an irreparable injury
- Remedies available at law are inadequate to compensate
- Considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted
- The public interest would not be disserved by a permanent injunction
First two are pretty much the same
Restitution is about what?
Unjust enrichment
